[Congressional Record Volume 153, Number 158 (Thursday, October 18, 2007)]
[House]
[Pages H11757-H11758]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               FISA MONTH

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California (Mr. Daniel E. Lungren) is recognized for 5 
minutes.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I found the 
comments of my friend from Maryland very interesting. I would just 
remind the Speaker and all who have looked on the vote today about the 
veto of SCHIP that when we passed the continuing resolution, we passed 
a continuation of SCHIP. So no children should be affected adversely 
during these weeks as we work to reach the compromise that the 
President has said he is working for.
  Mr. Speaker, I thought this should be called the ``FISA Week,'' 
Foreign Surveillance Intelligence Act Week. But now because of the 
actions of the majority, we were not able to vote on that

[[Page H11758]]

particular bill as it was presented to us earlier this week. We already 
knew we would be prohibited from offering any amendments, as the Rules 
Committee granted a closed rule.
  So let us call this the ``FISA Month,'' since we now know there is 
consideration for bringing the FISA bill back next week and the 
importance of FISA, foreign intelligence surveillance, cannot be 
overestimated.
  Yesterday, the Speaker of the House took the floor in the debate on 
the rule and, in a diplomatic or parliamentary tour de force, managed 
to contradict the United States Constitution, every decision made by 
the United States Supreme Court on this issue, and the decisions made 
by the appellate court of FISA, the FISA Courts. And that was when she 
suggested that the Constitution does not grant any inherent authority 
to the President to involve himself or direct, that is, foreign 
intelligence. As a matter of fact, every Supreme Court decision since 
the beginning of the Republic has recognized that. With respect to 
exclusivity of the law, every Supreme Court decision has recognized 
that such a law cannot be exclusive, as does the FISA Court, the 
appellate court under the FISA structure itself.
  Interestingly, however, when we do look at FISA, the bill that was 
brought forward to us as a result of a manager's amendment's being 
incorporated into the bill presented to us, it contains this language: 
This deals with the situation in which we have, everyone agrees, a 
constitutionally permitted wiretap or otherwise means of collecting 
communications between Osama bin Laden, a terrorist target in a foreign 
country, a foreigner in a foreign country. We have every right to 
gather that information under the law. There's no disagreement. But 
here is what happens under the bill presented to us:
  If the electronic surveillance referred to in that paragraph dealing 
with what we presume to be foreign-to-foreign communications 
inadvertently collects a communication in which at least one party to 
the communication is located inside the United States or is a United 
States person, the contents of such communication shall be handled in 
accordance with minimization procedures adopted by the Attorney 
General, and, now, this is the important language, ``that require that 
no contents of any communication to which a United States person is a 
party shall be disclosed, disseminated, or used for any purpose or 
retained for longer than 7 days unless a court order'' is given, 
``or,'' further it says, ``unless the Attorney General,'' and this 
requires him specifically, ``determines that the information indicates 
a threat of death or serious bodily harm to any person.''
  Now, why is this unfortunate? It is unfortunate because it changes 
the way we handle minimization in the criminal justice context. If we 
have a legal wiretap on a mafioso member and he happens to call his 
sainted mother or a priest or someone else, and that, therefore, is 
someone who was not under the wiretap, you don't have to go back to a 
court to get another court order in order to use whatever he said, that 
is, the mafioso member, against his interest. And here we would say 
that if in this conversation Osama bin Laden said something that didn't 
implicate the American but did give us information as to where Osama 
bin Laden was located or where Osama bin Laden was going to move, we 
would be prohibited from using that information, disclosing that 
information, disseminating that information, or keeping it for more 
than 7 days unless we went to a court for a new court order.
  That is nonsense. That gives Osama bin Laden more protection than an 
American citizen in the United States who is being investigated for a 
criminal offense. That is nuts. Not only is it nuts, it is dangerous to 
the American people because it creates a situation in which we would be 
blinded about information which would give us an ability, first of all, 
to find out what the dots are and then to connect the dots as to what 
the threat is against the United States. There is no rationalization 
for it, but it is part and parcel of what we have heard from the other 
side that we need to give now habeas corpus rights to those people we 
found on the battlefield around the world who are unlawful enemy 
combatants. It is part and parcel of a program that puts us at risk.
  I would ask us to consider it seriously next week.

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