[Congressional Record Volume 153, Number 156 (Tuesday, October 16, 2007)]
[House]
[Pages H11622-H11628]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  2000
                                  FISA

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 18, 2007, the gentleman from California (Mr. Daniel E. Lungren) 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, thank you for the 
recognition.
  And I would say that this week ought to be known as ``FISA week.'' 
The reason I say that is because this week we will make an important 
vote on determining whether or not we will have the ability to defend 
our country, both now and in the future.
  As we have moved on a bipartisan basis since 9/11 to attempt to meet 
the challenge of the threat internationally that is sometimes called 
the ``war on terror,'' sometimes called the ``war of Islamo-fascism,'' 
sometimes called the ``war on radical jihad,'' no matter what the name, 
the American people know what it is we are speaking of. We have, in 
this House, in the Senate and in the executive branch adopted an 
analysis which allows us to respond in the most effective way, and that 
analysis is a risk-based analysis. And simply put, broken down into its 
constituent parts, risk equals threat plus vulnerability plus 
consequence.
  The interesting thing in this equation is that the knowledge base of 
the bottom two elements, vulnerability and consequence, are within our 
grasp. Now, what do I mean by that? What I mean by that is 
vulnerability is our ability to assess how vulnerable our assets are 
that might be attacked by the enemy surrounding us. We can make 
educated judgments with respect to those assets, their value, how they 
could be attacked or destroyed, and how we can protect them against 
such attack or attempt of destruction.
  Similarly, consequence is within our knowledge base. We know, with a 
successful attack, what the consequence would be. For instance, if the 
attack were lodged against a dam, a catastrophic event, a collapse of a 
dam as a result of an attack, we can measure what the consequences 
would be. How? Well, we know the number of people that would be in the 
way. We know the number of buildings that would be in the way. We can 
make a determination as to the overall destructive power of the surging 
water that would come through a destroyed dam. We can make an educated 
judgment as to the time by which those assets that would be destroyed, 
the time it would take to restore such assets, such as highways, 
byways, such as shopping malls, homes, hospitals, all of those sorts of 
things. So, within our risk assessment, we are capable, more or less, 
of determining what our vulnerability is and what the consequences of a 
successful attack would be.
  There is a third element, threat, which is not as much in control of 
our already existing knowledge. Why? Because threat essentially is the 
intention of the enemy, the targets of the enemy, the timing of the 
enemy. That's what, in fact, a threat is. So, since that knowledge base 
is not within our power, essentially, how do we deal with that? How do 
we calculate what the threat is? We do so by utilizing intelligence. We 
gather intelligence. We find information from the other side, if you 
will, of the battle.
  This is not a novel approach. It is recognized in the Constitution 
and the interpretations of the Constitution by the Supreme Court and 
other Federal courts from the beginning of this Republic in that it is 
recognized that the President of the United States was given Commander-
in-Chief powers. Why? Because of the failure of the Continental 
Congress, because of the failure of the first Confederation of States 
when they found that you could not have multiple commanders in chief. 
You had to have a single executive, particularly in the area of war, 
defense of our country, or relationships with foreign governments.
  Now, implicit in the ability or the capability of a Commander-in-
Chief to exercise military strength on behalf of the Nation to defend 
itself, that is, to destroy those who would attempt to destroy us, yes, 
to give the President of the United States the power to exercise lethal 
action against the enemy, and that means, quite frankly, to wound or 
kill the enemy, to stop the enemy from destroying us, implicit in that 
authority is the authority to gather intelligence, the authority to 
gather foreign intelligence. In other words, one of the ways you find 
out what the enemy is to do on the battlefield is to find out what he 
is saying, the conversations that take place on the other side, the 
plans that they are developing, and the commands that they give to 
carry out their intended lethal action. That, essentially, is foreign 
intelligence.
  And what we are going to vote on this week is something called the 
Foreign Intelligence Surveillance Act, FISA. Now, the reason I bring 
this to the floor and I spell out these words is to remember what the 
focus of this bill is. It is on foreign intelligence, not domestic 
intelligence, not the ability to try and stop the mob from acting in 
the United States, not the ability to stop certain criminals in the 
United States from committing a crime or to investigate after they've 
committed the crime in order to prove up the case against them and to 
give them their just punishment, but rather, foreign intelligence, 
intelligence which deals with foreign governments, foreign powers, and 
associated organizations or people.
  The FISA Act was passed by the Congress in 1978, intended to 
establish a statutory procedure authorizing the use of electronic 
surveillance in the United States against foreign powers or agents of 
foreign powers. FISA established two new courts. First, the Foreign 
Intelligence Surveillance Court, which authorizes such electronic 
surveillance, and secondly, the U.S. Foreign Intelligence Surveillance 
Court of Review, which has jurisdiction

[[Page H11623]]

to review any denial of an order under FISA. These courts are made up 
of Federal judges from around the country, and they meet in secret 
session here in Washington, D.C.
  I would note that the House Permanent Select Committee on 
Intelligence report that accompanied FISA in 1978 clearly expressed 
Congress' intent to exclude from coverage overseas intelligence 
activities. In other words, they never intended for the FISA court and 
procedure to somehow have authority over what is truly overseas 
intelligence activities dealing with foreign intelligence or 
intelligence of foreign governments or foreign organizations.
  The report stated this: ``The Committee has explored the feasibility 
of broadening this legislation to apply overseas, but has concluded 
that certain problems and unique characteristics involved in overseas 
surveillance preclude the simple extension of this bill to overseas 
intelligence.'' In other words, it was not the focus of the 1978 act, 
rather, the act focused on domestic surveillance of persons located 
within the United States. The law was crafted specifically to exclude 
surveillance operations against targets outside the U.S., including 
those circumstances where the targets were in communication with 
Americans, as long as the U.S. side of the communication was not the 
real target. That's a very important thing to understand.
  In the ability to be able to record these messages or in some way 
pick up these communications, you really have the ability to target one 
side of the communication. And so what we do is we target a foreign 
person in a foreign country.

  Contrary to what Congress originally intended, due to the changes in 
technology and resulting interpretation of the FISA Act, warrants have 
been recently required in order to conduct surveillance against 
terrorists located overseas in some circumstances. Why? The technology 
changed in that, in 1978, most local communication was by wire, most 
international communication was wireless by satellite. We could take it 
basically out of the air, for want of a better description, and it was 
overseas. The 1978 act did not contemplate bringing those 
conversations, those communications within the ambit of FISA.
  In the intervening years, we've had a revolution in technology by 
which most local communication now is by wireless and international 
communication basically comes by wire. And the fact of the matter is 
the nodes or the centers or the switching places, whatever you want to 
call it, not technical terms, happen to be, most of them, in the United 
States. And so suddenly the interpretation of FISA, now looking at the 
connection where you would try and somehow be able to capture this 
conversation that really was of someone overseas and not American, now, 
because it transited somehow the U.S., an interpretation by the FISA 
court was that a warrant was now needed.
  Now, why would this present a problem for our intelligence community? 
Admiral McConnell, the former head of the National Security Agency, 
NSA, under President Clinton and now the current Director of National 
Intelligence, explained this to our Judiciary Committee. It takes about 
200 man-hours to prepare a request for a court order in the FISA court 
for just one telephone number; 200 man-hours. As he explained to the 
judiciary in the other body, intelligence community agencies were 
required to make a showing of probable cause in order to target for 
surveillance the communications of a foreign intelligence target 
located overseas; then, they need to explain the probable cause finding 
in documentation and obtain approval of the FISA court to collect 
against a foreign terrorist located in a foreign country.
  Frequently, although not always, that person's communications were 
with another foreign person located overseas. In such cases, prior to 
the Protect America Act, that's the act that we passed before we left 
in August, which I might add is not going to be allowed to be 
considered on the floor, at least the Rules Committee told us earlier 
today they would allow no amendments, the FISA's requirement to obtain 
a court order based on a showing of probable cause slowed, and in some 
cases, prevented altogether the government's ability to collect foreign 
intelligence information out serving any substantial privacy or civil 
liberties interests.
  Again, as the legislative history of the 1978 FISA Act made clear, it 
was never the intention of the act to cover surveillance of non-U.S. 
persons overseas so long as the U.S. person located in the United 
States was not the real target of the surveillance. Yet prior to the 
enactment of the bill that we passed in August, which has a sunset in 
February of next year, that's the reason we have to consider it this 
week, our intelligence community was saddled with the requirement that 
they devote substantial resources for the preparation of applications 
required to be submitted to the FISA court.

                              {time}  2015

  As an economist might say, this substantial diversion of resources 
imposed opportunity costs measured in terms of the intelligence 
analysis which was not done because of the need to complete paperwork 
in order to surveil foreign intelligence assets outside the U.S. who 
were never intended to be covered by the old law. In other words, you 
had to take the analysts off the job of looking at current 
communications that might protect us against attacks in the United 
States or elsewhere by those who want to kill Americans, who have said, 
by the way, that they would be justified in killing 4 million 
Americans, 2 million of whom would be women and children. We take them 
off that pursuit and instead put them on this job of doing the 
intellectual work that would allow for the paperwork to be presented to 
the FISA Court.
  Furthermore, in response to a question I posed to him, Admiral 
McConnell affirmed that prior to the Protect America Act, again, the 
act we passed just before we left in August, the intelligence community 
attempted to work under the laws interpreted by the court but found 
that as a result of working under those restrictions, his agency was 
prohibited from successfully targeting foreign conversations that 
otherwise would have been targeted for possible terrorist activity. 
Think of that: those kinds of conversations that we always were able to 
pick up before, before we ever had a FISA, after we had the 1978 FISA 
Act, we were not able to pick up anymore.
  In fact, he said that prior to the enactment of the Protect America 
Act this past August, we were not collecting somewhere between one-half 
and two-thirds of the foreign intelligence information which would have 
been collected were it not for the recent legal interpretations of FISA 
requiring the government to obtain FISA warrants for overseas 
surveillance. To put it in graphic terms, we have put blinders on one 
of our two eyes as to the ability for us to look at those dots and 
connect those dots that the 9/11 Commission said we weren't finding and 
weren't connecting before 9/11.
  The consequences of this for our Nation's security are very real. As 
Admiral McConnell explained to our committee: ``In the debate over the 
summer and since, I heard from individuals from both inside and outside 
the government assert that threats to our Nation do not justify this 
authority. Indeed, I have been accused of exaggerating the threats that 
face our Nation,'' said Admiral McConnell.
  He continued: ``Allow me to attempt to dispel this notion. The 
threats that we face are real and they are indeed serious. In July of 
this year, we released a National Intelligence Estimate, commonly 
referred to as an NIE, on the terrorist threat to the homeland. In 
short, these assessments conclude the following: the United States will 
face a persistent and evolving terrorist threat over the next 3 
years.'' Why 3 years? That is the total time of the NIE. They are not 
saying it will only just be 3 years, but in the time frame that they 
were supposed to assess, this threat will continue.
  They say that the main threat comes from Islamic terrorist groups and 
cells, especially al Qaeda. Al Qaeda continues to coordinate with 
regional terrorist groups such as al Qaeda in Iraq, across North Africa 
and other regions.
  Al Qaeda will likely continue to focus on prominent political, 
economic, and infrastructure targets with a goal of producing mass 
casualties. Mass casualties. That means thousands, if not millions, of 
Americans if they were successful. Visually dramatic destruction, 
significant economic aftershock and fear among the

[[Page H11624]]

U.S. population. These terrorists are weapons proficient. They are 
innovative and they are persistent. Al Qaeda will continue to seek to 
acquire chemical, biological, radiological and nuclear material for 
attack; and they will use them given the opportunity. This is the 
threat we face today and one that our intelligence community is 
challenged to counter. So says Admiral McConnell.
  This is the real issue, the 800-pound gorilla in the room, if you 
will, which remains the central question before us: How do we best 
protect America and the American people from another cataclysmic event? 
I do not believe it is good enough for us to say we are preparing to 
respond to an attack. I believe what we need to do is to prepare to 
prevent such an attack.
  As I have suggested before, when you assess the risk which allows us 
a proper assessment to be able to determine how we best array our 
resources against such an attack, we need to have threat, plus 
vulnerability, plus consequence. And the only way you can assess threat 
is by having proper intelligence.
  As the National Security Estimate makes clear, those who seek to kill 
us continue in their resolve to, once again, inflict mass casualties 
upon our Nation. The threat is still there. Although we have been 
successful in thwarting another attack since 9/11, there are no 
guarantees in this business. In fact, if you would look at the polls 
that I've seen most recently, you will find that something like 70 
percent of the American people, in fact I believe it is 73 percent of 
the American people in the latest poll I saw, believe that we, that the 
U.S. Government, has been effective in forestalling a terrorist attack 
on our shores. However, 57 percent believe that we are less safe. So 
you put those two things together, you try and figure out what the 
American people are saying. I think what we are saying is they believe 
that many of the things that we have done in government with the 
support of the American people and the funding of the American people 
have been successful in forestalling a terrorist attack on American 
shores, but they know that al Qaeda and their affiliates and associates 
have not been deterred to the extent that they are still trying to do 
us harm.
  So they see a continuing problem, and they expect us to see the 
continuing problem and bring us the efforts necessary to protect 
against a successful attack as seen from the other side.
  Independent sources such as Brian Jenkins in the RAND Corporation 
have stressed that intelligence capability is a key element in our 
effort to protect our homeland. He states this: ``In the terror attacks 
since 9/11, we have seen combinations of local conspiracies inspired 
by, assisted by, and guided by al Qaeda's central leadership. It is 
essential that while protecting the basic rights of American citizens, 
we find ways to facilitate the collection and exchange of intelligence 
across national and bureaucratic borders.''
  In this regard, Admiral McConnell came before us last August asking 
for changes in the 1978 FISA Act. When you think about it, a definition 
of ``electronic surveillance'' constructed almost 28 years ago 
certainly could not have kept pace with changes in technology. 
Ironically, as I said, when FISA was first enacted, almost all 
international communications were wireless. The cell phone did not even 
exist. Although the revolution in telecommunications technology has 
improved the quality of all of our lives, it has taken a quantum leap 
beyond the law.
  When FISA was passed in 1978, almost all local calls were on a wire 
and almost all international calls were wireless. However, now the 
situation is upside down. International communications which would have 
been wireless 29 years ago are now transmitted by wire. While wireless 
radio and satellite communications were excluded from FISA's coverage 
in 1978, certain wire or fiber optic transmissions fell under the 
definition of electronic surveillance. Thus, changes in technology have 
brought communications within the scope of FISA which Congress never 
intended to cover in 1978.

  Similarly, the rise of a global telecommunications network rendered 
irrelevant the premium placed on geographic location by the 1978 act. 
As Admiral McConnell explained to our committee, it is the Judiciary 
Committee, in the old days location was much easier. Today, with mobile 
communications, it is much more difficult.
  So a target can move around. So the evolution of communications over 
time has made it much more difficult. So what we were attempting to do 
is get us back to 1978 so we could do our business and legitimately 
target foreign targets and keep track of threats and respect the 
privacy rights of Americans. Because a cell phone, he continued, for 
example, with a foreign number, GSM system, theoretically could come 
into the United States and you wouldn't appreciate it had changed. So 
you would have to now work that problem, and if you did then determine 
that it was in the United States and you had a legitimate foreign 
intelligence interest, at that point, you have to get a warrant.
  It was with this backdrop that we enacted the Protect America Act 
this past August. According to Admiral McConnell, this act has provided 
us with the tools to close our gaps in our foreign intelligence 
collection. Think of that. That is what the 9/11 Commission asked us to 
do, close those gaps. He found those gaps that were at least as wide 
and even wider following the decision by the FISA Court earlier this 
year. He said, and says, that the bill we passed in August has closed 
those gaps.
  He described five pillars in the important new law. First, it 
clarified the definition of electronic surveillance under FISA that it 
would not be interpreted to include surveillance directed at a person 
reasonably believed to be located outside the U.S. Under the law, it is 
not required for our intelligence community to obtain a FISA warrant 
when the subject of the surveillance is a foreign intelligence target 
located outside the U.S. This important element of the law is entirely 
consistent with the legislative history of the 1978 act. As I 
previously mentioned, it was not intended to reach foreign intelligence 
outside the U.S.
  The second pillar of the act we passed in August establishes a role 
for the FISA Court in determining that the procedures used by the 
intelligence community are reasonable in terms of their capacity to 
determine that surveillance target is outside the U.S. The third pillar 
of the act provides the Attorney General and the Director of National 
Intelligence with the authority to direct communications providers to 
provide information, facilities and assistance necessary to obtain 
other information when targeting foreign intelligence targets outside 
the U.S.
  The corollary of this obligation to provide intelligence information 
is the fourth pillar which establishes liability protection for private 
parties who assist the intelligence community when complying with a 
lawful direction under the law.
  Finally, the law continues the requirement that the intelligence 
community must obtain a court order to conduct electronic surveillance 
or a physical search when the targeted person is located in the U.S.
  Admiral McConnell defined the concept of the gap to be closed to mean 
foreign intelligence information that we should have been collecting. I 
am sure that most Americans would agree with the admiral that in a 
world with weapons of mass destruction there is no room for gaps in our 
intelligence capacity. Let me repeat: this is the considered judgment 
of a career officer in the U.S. Navy who headed the National Security 
Agency under President Clinton for 4 years and who now serves as the 
Director of National Intelligence. It is his considered judgment that 
the changes we made in the law in August were necessary.
  Although it was scheduled to sunset 180 days after enactment on 
February 5, the ink was hardly dry before the left-wing blogosphere was 
going bananas. Now, don't get my wrong. I defend the right of any 
American to scrutinize and seek a different course concerning our 
national security policy. However, based on Admiral McConnell's service 
to his country to Democrat and Republican administrations, I would 
suggest that those who seek substantive changes in what he has told us 
to be necessary should face a heavy burden of proof. In fact, in his 
appearance before the Judiciary Committee while reserving the right to 
see the fine print, he indicated he himself was open

[[Page H11625]]

to discussions concerning changes in the end.
  I would also make the observation that it is time for all of us to 
agree that this is not about President Bush. Whether you hate him or 
love him or don't have any feelings about him at all, that is not the 
issue here. We are talking about the security of our Nation, the safety 
of our people, the men, women, children, grandchildren we encounter in 
our districts at Little League games, Girl Scout meetings, and our town 
halls. Those who send us here to represent them are depending on us to 
protect their lives and the lives of their children. This is the 
context within which we must consider this ultimate matter of our 
responsibility.
  While the law we passed in August, the Protect America Act, 
represents a major step forward in protecting the American people, 
there remain elements of the larger package unveiled by Admiral 
McConnell and General Hayden which should receive our prompt attention.
  First and foremost, it is imperative for this body to extend 
liability protection to companies who responded to the entreaties of 
their government since the 9/11 attacks. That is why I am so 
disappointed when I appeared before the Rules Committee earlier today 
and we were told, as we walked in, as anybody walked in with an 
amendment, We will listen to you, but we have already decided it is 
going to be a closed rule. One of the amendments offered would have 
given this liability protection. At a time when our country was in 
peril, these companies responded to the call for help. In an earlier 
era, maybe in a simpler time, this might have been described as 
patriotism. But now, instead of kudos, what do they get? They receive a 
summons and a complaint. They were met by costly litigation because of 
their willingness to respond to our country in a time of need.
  When we brought the issue up in our Judiciary Committee, one of the 
members on the other side of the aisle said, Well, these companies have 
millions dollars' worth of lawyers so they can defend themselves. Boy, 
that is the way we ought to do things. We are going to fight the war on 
terror with summonses and warrants.

                              {time}  2030

  We are going to sue them out of existence. Oh, I'm sorry. We are not 
suing the terrorists; we are suing the companies who helped us respond 
to the terrorists. Figure that one out.
  Mr. Speaker, I would go so far as to suggest that regardless of what 
you think of the war in Iraq, regardless of what you may think of the 
war on terror, this violates all notions of fundamental fairness. It 
sends the worst possible message, not only to companies, but to the 
American public itself, that those who would come to the aid of their 
country are fools, and it is those on such an ideological crusade 
seeking to protect this Nation through lawsuits that are somehow the 
true American heroes. Rosy the Riveter of World War II fame has been 
replaced by lawyers in three-piece suits.
  Some of you may be old enough to remember the standard text used in 
our typing classes. We would practice over and over again. Boy, I 
recall this, typing out the following sentence: Now is the time for all 
good men to come to the aid of their country. Of course it would have 
been better stated that: Now is the time for all good men and women to 
come to the aid of their country.
  This was an ethos which went unchallenged. Believe me, in typing 
classes it wasn't a Republican idea, it wasn't a Democratic idea, it 
was an American idea, so noncontroversial, that it was standard text: 
Now is the time for all good men and women to come to the aid of their 
country.
  Mr. Speaker, we must not send a message to our companies and the 
American people that if you respond to your government when our fellow 
citizens are threatened by a cataclysmic attack that the very 
government which sought your help will not be there for you when the 
ideologues come after you with lawsuits.
  Even if you hate this President so much you can't see him to succeed 
in anything, at least consider the possibility that there will be a war 
down the line that you may support. Furthermore, those who drive around 
with 1/20/09 bumper stickers need to consider the fact that maybe, 
possibly there could be a new occupant in the White House more to their 
liking. He or she is going to need all the help that he or she can get.
  Mr. Speaker, the war on terror is not going to end with the term of 
the current President. The new administration is going to need to call 
on the help of all Americans, including companies like those whose only 
offense was to respond to the tragedy of 9/11. By what? Serving their 
government.
  Consider the additional downside of using litigation as an 
ideological weapon. As anyone who picks up the daily newspaper knows, 
there is always a story concerning the latest lawsuits. The litigation 
system can produce leaks of the most sensitive information. It is not 
the dissemination of information to the public which is even our 
principal concern. Rather, potential leaks of sensitive information to 
terrorists will better equip them with the ability to maneuver in the 
plan which they are committed to doing, killing innocent Americans.
  Unfortunately, H.R. 3773, to be considered on this floor, the so-
called RESTORE Act that we passed out of Judiciary Committee last week 
and passed out of the Intelligence Committee, and which is scheduled 
for floor action as early as tomorrow, fails to address this issue. It 
does nothing, zero, provides no protection for the companies who came 
to the aid of our Nation after 9/11. As a matter of fact, if you listen 
to what happened in the Rules Committee, if you heard the debate in the 
Judiciary Committee, I presume if you heard the debate in the 
Intelligence Committee, you would not consider these companies to be 
something valuable in the defense of our Nation. They are suspect. They 
are questioned. They are, in essence, patsies, if you really look at 
this.
  Mr. Speaker, the Protect America Act does not contain retroactive 
liability protection; not because we didn't believe in it, but because 
Admiral McConnell agreed to delay discussion on the agreement in order 
to reach an agreement on the law we passed in August to enable us to 
close the critical gaps in our Nation's intelligence-gathering ability 
prior to the August break. Since by its own terms that law was to 
expire February 5, this was an issue to be resolved at this time.
  Unfortunately, the RESTORE Act resolves it by ignoring it. It is, 
therefore, essential for this body to take the necessary action to 
ensure that those who responded to the call for help after 9/11 will 
not be fed to the litigators.
  Mr. Speaker, I would be pleased to yield to my friend from New Mexico 
(Mrs. Wilson), a member of the Intelligence Committee, a former member 
of our military forces, and someone who has been probably the most 
articulate in explaining the need for the changes in the law that we 
passed in August and for making that permanent as we go forward.
  Mrs. WILSON of New Mexico. Mr. Speaker, I thank my colleague from 
California. I very much appreciate his hosting this Special Order this 
evening.
  Mr. Speaker, before the August break we fixed a problem. It was a 
problem that grew worse over the course of this year in that we were 
increasingly hampered in our ability to prevent another terrorist 
attack on this country because of the change in telecommunications and 
a law that was woefully outdated.
  It's called the Foreign Intelligence Surveillance Act. It was put in 
place in 1978 to protect the civil liberties of Americans. Think about 
it. 1978 was the year that I graduated from high school. The telephone 
hung on the wall in the kitchen. Cell phones had not been invented. The 
word ``Internet'' did not even exist. Technology has changed since 
1978, and the law had not kept pace.
  In 1978, almost all long-haul communications went over the air. 
Almost all international communications went over the air, and they 
were explicitly exempted from the provisions of the Foreign 
Intelligence Surveillance Act. Our intelligence community folks would 
go ahead and collect those communications if they had foreign 
intelligence value. They minimized or suppressed any involvement of 
Americans who were innocent and just happened to be referred to in a 
conversation or

[[Page H11626]]

something. But there were no restrictions on foreign intelligence 
collection.
  Mr. Speaker, unfortunately, technology has now changed, and what used 
to be over the air is now almost all on a wire. The courts have found 
that under the old Foreign Intelligence Surveillance Act, before we 
changed it in August of this year, that if you touched a wire in the 
United States, even if you were targeting a foreign terrorist talking 
to another foreign terrorist who had no connection to the United States 
at all, then you needed a warrant. This began very rapidly to cripple 
our intelligence capability with respect to terrorism in particular.
  The Director for National Intelligence, Admiral McConnell, has 
testified in open session that without the changes, without keeping the 
changes, making them permanent, that we put in place in August, we will 
lose between one-half and two-thirds of our intelligence collection on 
terrorism. Think about this for a second.
  Now we all remember where we were on the morning of September 11, 
remember who we were with, what we were wearing, what we had for 
breakfast. Most Americans don't remember where they were when the 
British Government arrested 16 people who were within 48 hours of 
walking onto airliners at Heathrow Airport and blowing them up 
simultaneously over the Atlantic. They don't remember it because it 
didn't happen.

  The American people want us to prevent the next terrorist attack. 
They don't want to have to remember where they were when a preventable 
disaster happened. That is what intelligence gives us, and that is why 
the Protect America Act is so important and why we have to make it 
permanent.
  Sadly, the Democratic majority is going to bring a bill to the House 
this week which will gut the progress that we made in early August. 
They say things in this bill that, on its face, initially you think, 
well, that makes sense. One of them is you would not need a warrant for 
any foreign-to-foreign communication.
  Well, doesn't that solve the problem? Wait a second. If Mr. Lungren, 
my colleague from California, was a foreign terrorist, just for the 
purposes of discussion, how do I know who he is going to call next? I 
don't. And if the law says that it is a felony to listen to the 
conversation of someone who is a foreigner calling into the United 
States, that means as soon as I collect that conversation, as soon as 
that terrorist makes a phone call into the United States, I become a 
felon. As a result, you have to have warrants on everyone.
  It doesn't relieve the system of this huge legal bureaucracy. It 
means they have to get warrants on every foreigner in foreign 
countries, even if they are only talking to foreigners, because they 
might some day pick up the phone and call an American. And, oh, by the 
way, that is the conversation we want to be listening to. If we have a 
terrorist affiliated with al Qaeda calling into the United States, you 
bet we should be on that conversation. We should be all over that like 
white on rice. We shouldn't be waiting to get a warrant from a judge in 
Washington, D.C.
  But it gets worse than that. They also put in this bill some things 
called blanket warrants.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, reclaiming my time, 
I have referred to that section, that first section where they say you 
don't need it if it is foreign-to-foreign as the ``furtive fig leaf'' 
section of the bill, which appears to give Admiral McConnell what he 
needs, but because of the actual practicality of it, denies him the 
opportunity to do it, because essentially that was sort of the state of 
the law prior to the time we passed the law in August, and he told us 
it doesn't work.
  Mrs. WILSON of New Mexico. If the gentleman would yield further, that 
is exactly right. There is already a provision in the law and was in 
1978 that if it was foreign-to-foreign communication, you didn't need a 
warrant.
  There are some circumstances where you are tapping into a line that 
is between a command headquarters of the former Soviet Army and one of 
their missile silos where it is a dedicated line. But modern 
telecommunications don't operate that way, and the terrorists who are 
trying to kill us are using modern commercial telecommunications. They 
are not using dedicated lines between headquarters. They don't even 
have headquarters.
  Mr. DANIEL E. LUNGREN of California. If the gentlewoman would allow 
me to reclaim my time for a moment, evidently some on the other side of 
the aisle have listened to a little bit of our complaint here, so in 
the manager's amendment they have included what they consider to be the 
saving piece of that first section, which says if the electronic 
surveillance referred to in paragraph 1 inadvertently collects a 
communication in which at least one party to the communication is 
located inside the U.S. or is a United States person, the contents of 
such communication shall be handled in accordance with minimization 
procedures adopted by the Attorney General.
  If that is all they did, that would be fine with me. But they then go 
on to say this, that require that no contents of any communication to 
which the United States person is a party shall be disclosed, 
disseminated or used for any purpose or retained for longer than 7 
days, unless you get a court order or unless the Attorney General 
determines specifically in this case that the information indicates a 
threat of death or serious bodily harm to any person.
  Now, Admiral McConnell has suggested to us that time frame, they say 
you can't keep it longer than 7 days, may not be practical within the 
contours of how we actually get that information, number one; and, 
secondly, you can't use that information. You can't give it to anybody. 
You can't disclose it to the FBI, even though the information doesn't 
make the person in the United States a target, the information 
contained in that conversation is all about Osama bin Laden calling 
into the United States and something he says that is important for our 
purposes. That is the extraordinary thing here, because it says no 
contents of any communication to which the United States person is a 
party shall be disclosed, disseminated or used.
  It is exactly contrary to what Admiral McConnell said, which is the 
law should be directed at the identity of the individual we are 
targeting. So in this case, because you now capture a conversation that 
has taken place with the foreign person in a foreign land into the 
United States, even though it doesn't give rise to anything that would 
make a target of that person in the United States, you can't use any of 
that conversation with respect to the target for which you don't need a 
warrant, even though that person could be Osama bin Laden or one of his 
top people.
  That is nuts. With all due respect, I use the word ``nuts,'' but I 
think that is probably proper.
  Mrs. WILSON of New Mexico. Let's just think of an example here. Let's 
say Osama bin Laden or one of his chief lieutenants did call into the 
United States to a completely innocent person, a completely innocent 
person under this law which the Democrats are going to try to pass this 
week, and what he says in that conversation is ``Don't go to the Sears 
Tower tomorrow. Stay away from the Sears Tower tomorrow.'' Whoever in 
the intelligence community gets that communication is barred by law 
from giving it to anyone who can take any action to prevent a terrorist 
attack on this country.
  Mr. DANIEL E. LUNGREN of California. Unless they go to court and get 
an order, which requires all of the necessary preparation that Admiral 
McConnell has told us we cannot do.
  Mrs. WILSON of New Mexico. You may not even know who the person is 
being called, other than it is an area code and number in the United 
States, which means you don't have any probable cause. You have to send 
the FBI out and find out whose number that is and whether they are 
reasonably believed to be involved in a crime.

                              {time}  2045

  But the threat is immediate. We cannot have our intelligence agencies 
tied up in legal redtape when they are the first line of defense for 
this country in the war on terrorism.
  I am appalled that we have people in this body who put forward 
legislation who seem to be more concerned about protecting the civil 
liberties of terrorists overseas than they are about protecting 
Americans here at home and preventing the next terrorist attack.

[[Page H11627]]

  This would be an unprecedented extension of judicial oversight into 
foreign intelligence operations. We don't even do this in criminal 
cases, and my colleague is much more experienced in criminal law than I 
am. But if we are listening to a Mafia kingpin and he happens to call 
his son's second grade teacher.
  Mr. DANIEL E. LUNGREN of California. Or his sainted mother or his 
brother, the priest.
  Mrs. WILSON of New Mexico. Anybody. And we are not prevented from 
using that information until we get a warrant on the priest or his 
mother or his son's second grade teacher. The target is the Mafia 
kingpin.
  This legislation will tie our intelligence community in knots in 
order to protect the civil liberties of terrorists in foreign countries 
who are trying to kill Americans.
  There are some in this body who may believe we shouldn't have 
intelligence services. I believe it was Hoover who said that gentlemen 
shouldn't read each other's mail. Well, we are not dealing with 
gentlemen here. We are dealing with terrorists who are trying to kill 
Americans and are using commercial communications to talk to each 
other. We must do everything we can to prevent that terrorist attack, 
and that means listening to their conversations if we get an 
opportunity to do so.
  Mr. DANIEL E. LUNGREN of California. I would like to pose this 
question to the gentlelady. The gentlelady has studied this issue for a 
long time and was one of the first people to raise certain points of 
considered alarm, trying to bring a sense of urgency to this House to 
respond to the threat that is out there.
  There is another troubling aspect of the bill to be brought to the 
floor. It has a sunset of December 31, 2009. So that would suggest to 
anybody looking from the outside that there is an end game or an end 
date at which the threat no longer exists. Can the gentlelady give us 
any advice, considered opinion, as to whether or not this threat is 
long lasting? Or should we limit this law just to the next 2 years?
  Mrs. WILSON of New Mexico. I don't think anybody believes that the 
threat of Islamic terrorism to the United States, or other foreign 
threats, are somehow going to go away in the next 18 months. That is 
just not going to happen. What is even worse about this bill, while 
they set up some system of blanket warrants with respect to some 
national security matters, they do not allow any so-called blanket 
warrants for things that are outside of direct threats to the United 
States, which is unprecedented in foreign intelligence collection.
  That means if we are trying to listen to Hugo Chavez in Venezuela, or 
we are trying to figure out whether the leader of Sudan is about to 
launch another wave of genocide in Darfur, or we want to listen in to 
what the Chinese or the North Koreans are talking to each other about 
with respect to the Six-Party Talks and the potential for weapons of 
mass destruction on the Korean Peninsula, we are absolutely prohibited 
from listening to those conversations without a warrant from a court in 
the United States of America. The courts have never been involved in 
that way. Never in the history of this country, nor should they be. 
Foreign intelligence collection of foreigners in foreign countries has 
never been subject to warrants here in the United States.
  Mr. DANIEL E. LUNGREN of California. Today I presented two amendments 
before the Rules Committee for consideration on this floor. Both were 
denied. One would have expanded the definition of foreign intelligence 
individuals or states to include nonstate actors who are involved in 
proliferation of weapons of mass destruction.
  The reason I did that is al Qaeda is not a state. There are free 
actors out there who would attempt to work with nation states or with 
organizations such as al Qaeda; and technically under the definition 
currently in the FISA law, they are not covered so that we couldn't do 
these sorts of things you talk about, listening in on their 
conversations without warrants, even though they may be as much a 
threat as a small nation state somewhere. But yet we don't even have an 
opportunity to discuss that on the floor of the House because that 
amendment and every other amendment was denied.
  Mrs. WILSON of New Mexico. There is historical precedent for this, 
one of a Pakistani who ran a criminal enterprise, an international 
network that was selling nuclear materials and the capability to build 
nuclear weapons to people and countries around the world. While he was 
Pakistani by nationality and had helped with the Pakistan Government's 
weapons program, there was no question that he wasn't acting as an 
agent of Pakistan, at least I don't think there was. He was running a 
criminal enterprise for money, and we should be able to listen in and 
track people like that.
  Likewise, I think our foreign intelligence should be able to listen 
to narco-rings in Burma and be able to detect whether there are cocaine 
smugglers who are trying to ship drugs into the United States.
  These are all foreigners who are doing things that we do not like 
that are not in our interests and our intelligence capabilities should 
be used to disrupt those things. This law would shut that down. Shut it 
down. And Admiral McConnell has been very clear on that.
  Mr. DANIEL E. LUNGREN of California. Let us return to the protections 
of Americans.
  In the criminal justice system for years and years and years, 
somewhere between 30 and 50 years, we have done minimization, which 
means that if you have a wiretap on a Mafia member, and as I say, he 
calls his sainted mother or his priest, and the conversation has 
nothing to do with Mafia activities, that is minimized. That is, it is 
taken out of the data field and thrown away, essentially. If he says 
something in that conversation, while not implicating the other person 
in the conversation that is of benefit to our investigation, that is, 
he comments he is going to be going to Nashville and that's an 
important piece of information for us to know, we can use that. If the 
receiver of the conversation or communication, by what he or she says, 
indicates activity of an illegal nature such that that person becomes a 
target, it is at that point we require a warrant for that person.
  Similarly, the way the law that we passed in August works is once you 
have the legal nonwarrant wiretap, or whatever you want to call it, 
catch of or capture of the communication because the target is a 
foreigner in a foreign country and you have reason to believe they are 
involved in some way that is covered under the law, that conversation 
or communication to someone within the United States is treated in the 
very same way.
  If the conversation has nothing to do with terror, it is minimized. 
It is thrown out. If the conversation contained some information about 
the legal target that is of benefit, we can use that information 
against that target. If in fact the response or the statement made by 
the person in the United States, the American, is of a nature that 
gives us cause to believe that person is involved in terror, we then go 
get a warrant because that person becomes a target. Is that the 
gentlelady's understanding of how we operate?

  Mrs. WILSON of New Mexico. That is exactly how this law works. If the 
target is an American, you need a warrant. If the target is a 
foreigner, you don't need a warrant; foreigner in a foreign country.
  I think one of the things that is important to remember here, 
something that has been the greatest accomplishment in the last 6 years 
in this country has been what has not happened. We have not had another 
terrorist attack on our soil. And it is not because they haven't tried.
  Osama bin Laden and al-Zawahiri have been very clear: they want to 
kill millions of Americans, and they will do it if they can.
  The question is whether we will use the tools at our disposal, 
entirely constitutional and legal tools, in order to prevent the next 
terrorist attack, to stop the attack on the USS Cole, to prevent the 
planes from taking off from Heathrow to kill thousands of innocent 
Americans. Intelligence is the first line of defense in the war on 
terrorism. It is possible to provide our intelligence community with 
the tools to keep us safe while protecting the civil liberties of 
Americans, and that is the perspective that the Democrat majority has 
lost.

[[Page H11628]]

  When Admiral McConnell appeared before the Judiciary Committee, he 
wanted to make clear our understanding of the technology of the capture 
of conversations. And he put it this way: he said when you are 
conducting surveillance in the context of electronic surveillance, you 
can only target one end of the conversation. So you have no control 
over who that number might call or who they might receive a call from. 
He then went on to say if you require a warrant in circumstances that 
we have never required before, as is the implication of the bill to be 
brought before us, he said if you have to predetermine it is a foreign-
to-foreign before you do it, it is impossible. That's the point. You 
can only target one. If you are going to target, you have to program 
some equipment to say I am going to look at number 1, 2, 3. So 
targeting in this sense, you are targeting a phone number that is 
foreign. So that's the target. The point is you have no control over 
who that target might call or who might call that target.
  Is that consistent with your understanding in the years you have been 
on the Intelligence Committee and the years you have looked at this 
issue?
  Mrs. WILSON of New Mexico. That is exactly right. The biggest problem 
is that the terrorists who are trying to attack us, and even foreign 
governments, are increasingly using commercial communications. So they 
don't have dedicated lines between a couple of government buildings. In 
modern communications, those communications will flow wherever it is 
fastest to get to wherever they are calling to. Sometimes that call 
will transit the United States, and we shouldn't require a warrant just 
because the point of access to that conversation happens to be within 
the United States.
  Mr. DANIEL E. LUNGREN of California. I know we only have about 5 
minutes left. This is testimony that Admiral McConnell gave before the 
Judiciary Committee. He was asked this directly by a Member from the 
other side of the aisle: How many Americans have been wire tapped 
without a court order?
  The direct response by the DNI, none. He went on to say there are no 
wiretaps against Americans without a court order. None. What we are 
doing is we target a foreign person in a foreign country. If that 
foreign person calls in the United States, we have to do something with 
the call. The process is called minimization. It was the law in 1978. 
It is the way it is handled.
  Is that your understanding?
  Mrs. WILSON of New Mexico. That is my understanding, and he has 
testified to that in the Intelligence Committee as well. That is what 
gets lost here. People seem to think that somehow this impacts the 
civil liberties of Americans. No, this bill that the Democrats are 
bringing to the floor this week will extend civil liberties protections 
to foreigners trying to kill Americans. It will make it harder for our 
soldiers and our law enforcement folks and our intelligence community 
to find out when the next attack is coming in order to prevent it.
  I don't understand why they are going in this direction. Sometimes I 
don't think they really understand what they are doing here. Sometimes 
I think it is not entirely intentional on the part of some of these 
folks, that they really do not understand how this works and how badly 
they are crippling American intelligence if they pass this law.
  Mr. DANIEL E. LUNGREN of California. We should recall the words of 
the United States Supreme Court in the Keith case which is the case 
that dealt with wiretaps in the United States. They said that while 
there was no warrant exception in domestic surveillance cases, it was 
not addressing the question of activities related to foreign powers and 
their agents. And in that unanimous opinion, the court noted that were 
the government to fail ``to preserve the security of its people, 
society itself could become so disordered that all rights and liberties 
would be endangered.''
  Justice White, a John Kennedy appointment to the Court who 
personified the definition of a moderate, said this in his concurring 
opinion in the Katz v. U.S. case: ``We should not require the warrant 
procedure in a magistrate's judgment if the President of the United 
States or his chief legal officer, the Attorney General, has considered 
the requirements of national security and authorized electronic 
surveillance as reasonable.''
  In other words, the court when it dealt with this issue those years 
ago recognized the difference between a criminal justice system and a 
system of intelligence and counterterrorism to protect our country from 
attack by those who would basically destroy everything, including our 
Constitution and our constitutional foundation.
  Mrs. WILSON of New Mexico. If you think about how the challenge has 
changed since the Cold War, in the Cold War, we had early warning 
systems. We had Cheyenne Mountain that was watching early warning 
systems to see if Soviet bombers were heading towards us or missile 
systems had launched, immediately scrambling airplanes and taking 
immediate action to protect this country.

                              {time}  2100

  And we had intelligence systems set up to be able to detect and give 
us that early warning. The problem has changed, but the need for early 
warning is still there.
  Now, what we didn't do when we got a detection that bombers were 
coming towards the United States was call the lawyers in Washington to 
see if we could launch our airplanes to protect us. The system was set 
up to be fast and immediately responsive.
  What the Democrats are going to do this week is to say if you get a 
detection, if you believe you have early warning, that the terrorists 
are coming to destroy Americans or attack Americans, put that on hold 
while you go get a warrant, talk to judges, take hours to decide 
whether we can respond. That will not allow us to protect America.
  Mr. DANIEL E. LUNGREN of California. The gentlelady is exactly 
correct, and let me suggest, to get down to basics, that when 
surveillance is directed overseas, legitimate concerns relating to 
purely domestic surveillance are not implicated. We should all be 
concerned about the protections of civil liberties, as the 9/11 
Commission put it.
  The choice between security and liberty is a false choice as nothing 
is more likely to endanger America's liberties than the success of a 
terrorist attack at home.
  And I thank the gentlelady for her comments.
  Mrs. WILSON of New Mexico. I thank the gentleman for having this hour 
tonight.

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