[Congressional Record Volume 153, Number 184 (Tuesday, December 4, 2007)]
[Extensions of Remarks]
[Pages E2476-E2477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RESTORE ACT OF 2007

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                      Thursday, November 15, 2007

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of 
H.R. 3773, the ``Responsible Electronic Surveillance That Is Overseen, 
Reviewed, and Effective Act of 2007.'' I support this legislation, the 
RESTORE Act, because it corrects the damage done by the misnamed 
Protect America Act and restores this Nation's commitment to the rule 
of law, the dignity of the individual, and the separation of powers. 
This legislation is worthy of an aye vote from all Members because it 
restores allegiance to the Constitution and gives our intelligence 
agencies all the tools they need to conduct the foreign surveillance 
necessary to keep our country safe.
  Mr. Speaker, in August of this year, I strongly opposed S. 1927, the 
so-called ``Protect America Act'' (PAA) when it came to a vote on the 
House floor. And I was a very reluctant supporter of H.R. 3356, the 
House alternative that attracted a majority of votes, but not a two-
thirds super-majority, on the House floor. Had the Bush Administration 
and the Republican-dominated 109th Congress acted more responsibly in 
the two preceding years, we would not have been in the position of 
debating legislation that had such a profoundly negative impact on the 
national security and on American values and civil liberties in the 
crush of exigent circumstances. As that regrettable episode clearly 
showed, it is true as the saying goes that haste makes waste.
  The PAA was stampeded through the Congress in the midnight hour of 
the last day before the long August recess on the dubious claim that it 
was necessary to fill a gap in the Nation's intelligence gathering 
capabilities identified by Director of National Intelligence Mike 
McConnell. But in reality it would have eviscerated the Fourth 
Amendment to the Constitution and represented an unwarranted transfer 
of power from the courts to the Executive Branch and a Justice 
Department led at that time by an Attorney General whose reputation for 
candor and integrity was, to put it charitably, subject to considerable 
doubt.
  The legislation before us, the RESTORE Act, H.R. 3773 is superior to 
the PAA by orders of magnitude. This is due in no small measure, Mr. 
Speaker, to the willingness of the leadership to reach out to and work 
with all members of the House. The result shows. The RESTORE Act does 
not weaken our Nation's commitment to its democratic traditions. 
Rather, it represents a sound policy proposal for achieving the only 
legitimate goals of a terrorist surveillance program, which is to 
ensure that American citizens and persons in America are secure in 
their persons, papers, and effects, but terrorists throughout the world 
are made insecure. Let me direct the attention of all members to 
several of the more important aspects of this salutary legislation.
  First, H.R. 3773 explicitly affirms that that the exclusive law to 
follow with respect to authorizing foreign surveillance gathering on 
U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As 
initially enacted by Congress in 1978, the exclusivity of FISA was 
undisputed and unambiguous. I hasten to add, however, that while FISA 
remains the exclusive source of law, H.R. 3773 recognizes that the law 
as enacted in 1978 can and should be adapted to modern circumstances 
and to accommodate new technologies. And it does so by making clear 
that foreign to foreign communications are not subject to the FISA, 
even though modern technology enables that communication to be routed 
through the United States.
  Second, under H.R. 3773, the Foreign Intelligence Surveillance Court 
(FISC) is indispensable and is accorded a meaningful role in 
ensuring compliance with the law. The bill 
ensures that the FISC is empowered to act as an Article III court 
should act, which means the court shall operate neither as a rubber-
stamp nor a bottleneck. Rather, the function of the court is to 
validate the lawful exercise of executive power on the one hand, and to 
act as the guardian of individual rights and liberties on the other.
  Third, the bill does not grant amnesty to any telecommunications 
company or to any other entity or individual that helped Federal 
intelligence agencies spy illegally on innocent Americans. I strongly 
support this provision because granting such blanket amnesty for past 
misconduct will have the unintended consequence of encouraging 
telecommunications companies to comply with, rather than contest, 
illegal requests to spy on Americans. The only permissible path to 
legalization of conduct in this area is full compliance with the 
requirements of the Foreign Intelligence Surveillance Act.
  Moreover, Mr. Speaker, it is important to point out that the loudest 
demands for blanket immunity comes not from the telecommunications 
companies but from the Administration, which raises the interesting 
question of whether the Administration's real motivation is to shield 
from public disclosure the ways and means by which government officials 
may have ``persuaded'' telecommunications companies to assist in its 
warrantless surveillance programs. I call my colleagues' attention to 
an article published in the Washington Post last Sunday, in which it is 
reported that Joseph Nacchio, the former CEO of Qwest, alleges that his 
company was denied NSA contracts after he declined in a February 27, 
2001 meeting at Fort Meade with National Security Agency (NSA) 
representatives to give the NSA customer calling records.
  Mr. Speaker, the authorization to conduct foreign surveillance on 
U.S. soil provided by H.R. 3773 is temporary and will expire in 2 years 
if not renewed by the Congress. This is perhaps the single most 
important limitation on the authority conferred on the Executive Branch 
by this legislation. The good and sufficient reason for imposing this 
limitation is because the threats to America's security and the 
liberties of its people will change over time and thus require constant 
vigilance by the people's representatives in Congress.

  To give a detailed illustration of just how superior the RESTORE Act 
is to the ill-considered and hastily enacted Protect America Act, I 
wish to take a few moments to discuss an important improvement in the 
bill that was adopted in the full Judiciary Committee markup.
  The Jackson-Lee Amendment added during the markup made a constructive 
contribution to the RESTORE Act by laying down a clear, objective 
criterion for the Administration to follow and the FISA court to 
enforce in preventing reverse targeting.
  ``Reverse targeting,'' a concept well known to members of this 
Committee but not so well understood by those less steeped in the 
arcana of electronic surveillance, is the practice where the government 
targets foreigners without a warrant while its actual purpose is to 
collect information on certain U.S. persons.
  One of the major concerns that libertarians and classical 
conservatives, as well as progressives and civil liberties 
organizations, have with the PAA is that the understandable temptation 
of national security agencies to engage in reverse targeting may be 
difficult to resist in the absence of strong safeguards in the PAA to 
prevent it.
  My amendment reduces even further any such temptation to resort to 
reverse targeting by requiring the administration to obtain a regular, 
individualized FISA warrant whenever the ``real'' target of the 
surveillance is a person in the United States.
  The amendment achieves this objective by requiring the administration 
to obtain a regular FISA warrant whenever a ``significant purpose of an 
acquisition is to acquire the communications of a specific person 
reasonably believed to be located in the United States.'' The current 
language in the bill provides that a warrant be obtained only when the 
Government ``seeks to conduct electronic surveillance'' of a person 
reasonably believed to be located in the United States.
  It was far from clear how the operative language ``seeks to'' is to 
be interpreted. In contrast, the language used in my amendment, 
``significant purpose,'' is a term of art that has long been a staple 
of FISA jurisprudence and thus is well known and readily applied by the 
agencies, legal practitioners, and the FISA Court. Thus, the Jackson-
Lee Amendment provides a clearer, more objective, criterion for the 
administration to follow and the FISA court to enforce to prevent the 
practice of reverse targeting without a warrant, which all of us can 
agree should not be permitted.
  Let us be clear, Mr. Speaker, that nothing in the bill or in my 
amendment requires the Government to obtain a FISA order for every 
overseas target on the off chance that they might pick up a call into 
or from the United States. Rather, the bill requires, as our amendment 
makes clear, a FISA order only where there is a particular, known 
person in the United States at the other end of the foreign target's 
calls in whom the Government has a significant interest such that a 
significant purpose of the surveillance has become to acquire that 
person's communications.
  This will usually happen over time, and the Government will have the 
time to get an order while continuing its surveillance. And it is the 
national security interest to require it to obtain an order at that 
point, so that it can lawfully acquire all of the target person's 
communications rather than continuing to listen to only some of them.
  The Jackson-Lee amendment gives the Government precisely what 
Director of National Intelligence McConnell asked for when he testified 
before the Senate Judiciary Committee: ``It is very important to me; it 
is very important to members of this Committee. We

[[Page E2477]]

should be required--we should be required in all cases to have a 
warrant anytime there is surveillance of a US [sic] person located in 
the United States.''
  In short, the Jackson-Lee amendment makes a good bill even better. 
For this reason alone, civil libertarians should enthusiastically 
embrace the RESTORE Act.
  Nearly 2 centuries ago, Alexis de Tocqueville, who remains the most 
astute student of American democracy, observed that the reason 
democracies invariably prevail in any martial conflict is because 
democracy is the governmental form that best rewards and encourages 
those traits that are indispensable to martial success: initiative, 
innovation, resourcefulness, and courage.
  Mr. Speaker, the best way to win the war on terror is to remain true 
to our democratic traditions. If it retains its democratic character, 
no nation and no loose confederation of international villains will 
defeat the United States in the pursuit of its vital interests.
  Thus, the way forward to victory in the war on terror is for the 
United States country to redouble its commitment to the Bill of Rights 
and the democratic values, which every American will risk his or her 
life to defend. It is only by preserving our attachment to these 
cherished values that America will remain forever the home of the free, 
the land of the brave, and the country we love.

                          ____________________