[Congressional Record Volume 154, Number 7 (Thursday, January 17, 2008)]
[House]
[Pages H339-H344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  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. Madam Speaker, this afternoon we 
find ourselves in what only can be described as ominous circumstances.
  In 2 weeks, our Nation will no longer be able to conduct critical 
surveillance

[[Page H340]]

of foreign terrorists located outside the United States. We face this 
situation because, in order to close what the Director of National 
Intelligence described as critical intelligence gaps, he had to agree 
with the Congress the necessary reforms embodied in the Protect America 
Act would expire in 180 days.
  Although this body did adopt follow-on legislation, the majority 
party's so-called RESTORE Act in November of last year, this 
legislation imposed additional burdens on the intelligence community 
which, in my judgment, undermined the essential nature of the 
compromise reached with Admiral McConnell.
  Furthermore, it punted on the critical question of whether 
retroactive protection would be extended to those communication 
providers who responded to the call for help from their government in 
the wake of 9/11. If press reports are accurate, similar ideological 
currents in the other body threaten to dominate the outcome of this 
critical issue and potentially the eventual resolution of the larger 
FISA issue itself, that is, the Foreign Intelligence Surveillance Act 
issue itself.
  There is no issue of greater importance to those of us who serve in 
this body than the protection of the American people from another 
catastrophic attack like that we received on 9/11. In fact, this 
responsibility goes to the very heart of the purpose for which 
government exists. The very preamble to our Nation's Constitution 
spells out this obligation to provide for the common defense.
  It was for this very reason that on August 5 last year we passed the 
Protect America Act, which responded to the minimum requirements 
presented to this body by the Director of National Intelligence, 
Admiral McConnell.
  At the same time, Admiral McConnell described this legislation as 
necessary in order to ``close critical intelligence gaps.'' He defined 
the concept of a gap to mean ``foreign intelligence information that we 
should have been collecting.''
  Admiral McConnell testified before the House Judiciary Committee 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 which required the 
government to obtain FISA warrants for overseas surveillance.
  This is very serious business, because if you look at our challenge 
from those who would kill us in the name of some sort of distorted view 
of Islam, we basically have to assess that risk by way of threat, by 
way of vulnerability and by way of consequence.
  With respect to consequence and vulnerability, we have within our 
property of information, within our store of information, the ability 
to make those judgments. In other words, when we look at vulnerability 
for a particular site, a potential target, we have the information 
about that target because it is either American owned, privately or 
governmentally, and we can analyze that and determine what 
vulnerabilities exist.
  Similarly, with respect to the question of consequence, we have that 
information available as well, because we can make calculations as to a 
type of attack which might take place, the damage it would do and, 
therefore, the consequences that would flow from that.
  But there is one area of the analysis of risk that is not totally 
within our information base, and that is the area of the threat. What 
is the threat? The threat is that which is in the mind of those who 
would do us harm. It is within the planning of those who would do us 
harm, and it is within the orders of those who would carry out those 
attacks on us to do us harm.
  That is where intelligence comes into play. Intelligence means 
gathering information that otherwise is within the authority of those 
who would do us harm. That means essentially listening in wherever we 
can on the conversations or communications they may have.

                              {time}  1530

  That is the essence of intelligence. That's why it is so important. 
It is that part of the three-part analysis of risk which is not totally 
within our information base and therefore that which we have to go out 
and extract. That's why it's so important.
  I am sure that most Americans would agree with Admiral McConnell, a 
distinguished public servant who headed the National Security Agency in 
the Clinton administration for 4 years and now serves as our Director 
of National Intelligence, that the changes contained in the Protect 
America Act were necessary. Regardless of how one interprets the most 
recent National Intelligence Estimate concerning Iran, any attempt to 
attack Admiral McConnell as a tool of the Bush administration would 
appear to be lacking in any credibility whatsoever.
  I would say it is somewhat interesting that when he appeared before 
our committee, one of the questions asked of him was whether he had it 
in himself to speak truth to power. There should be no doubt in 
anyone's mind that Admiral McConnell is a man of honor who, in fact, 
calls them as he sees them. And, in fact, that's precisely what he has 
done. According to Admiral McConnell, the Protect America Act has 
provided us with the tools to close gaps in our foreign intelligence 
collection. In other words, the law that we passed in August, which 
necessarily accompanied with it a 180-day sunset as the price of 
passing it, so, therefore, it is in the law now, that law, as it works, 
has, in the judgment of Admiral McConnell, provided us with the tools 
``to close those gaps in our foreign intelligence collection.'' This 
act clarified that the definition of ``electronic surveillance'' under 
FISA would not be interpreted to include intelligence directed at 
persons reasonably believed to be located outside of the United States. 
Thus, under the Protect America Act, 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 
United States.
  Now, critics of the Protect America Act have suggested that the FISA 
warrant process should be excused only under circumstances where the 
communication is a foreign-to-foreign communication. The corollary of 
this argument is that if a foreign terrorist were to contact someone in 
the U.S., the intelligence community should be required to first obtain 
a warrant before listening to the conversation.
  Now, let's put aside the fact that were Aiman al Zawahiri to place a 
telephone call to a sleeper cell, let's say in San Francisco, perhaps 
that might be the most worrisome of circumstances, and we want to be 
assured that we would collect that information.
  But focusing purely on the practical legal considerations raised by 
the opponents of the Protect America Act, this formulation is simply 
unworkable. Why? The problem is that we do not target both ends of the 
conversation or communication, because we can't. Rather, we target only 
one end of the communication or conversation, the foreign person 
located outside the U.S. When a foreign terrorist in Islamabad places a 
call, the known factor beforehand that we have is that he or she is the 
one making the call. In the normal course of things, to whom the call 
is being made is unknown prior to the time that the call is made. 
Before the call is placed, it is simply not technically possible to 
note whether the call will go to another foreign destination, say 
Frankfurt, OR to someone somewhere in the U.S.
  The attempt to legislate warrant requirements on foreign individuals 
outside the U.S. based on whether they place a call to another foreign 
destination or to a U.S. destination would create an impossible 
nightmare for our foreign intelligence operations. Admiral McConnell 
made this very point in questioning during the Judiciary Committee 
hearing. The admiral responded that ``when you're 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. The 
Protect America Act addressed the problem, while at the same time 
maintaining the longstanding prohibition against targeting U.S. persons 
in the U.S.''
  The Protect America Act was a targeted response to a specific 
challenge. However, if we're presented with a problem, which has once 
again brought

[[Page H341]]

us to the House floor this afternoon, by its terms, as I mentioned 
before, the Protect America Act is scheduled to expire on February 1, 
about 2 weeks from today, but with a lot fewer legislative days 
available.
  It's interesting, the 5-day work week has gone by the boards; we 
canceled any consideration of votes tomorrow; we are able to get out of 
here in the afternoon in good time. That's good for Members who had to 
leave because of the weather. But what is the reason we're here? The 
reason we're here is to do the people's business. And is there anything 
more important than protecting the American people from attack? What 
can be more important than working out an answer to the FISA problem?
  Why is it a problem? Because on February 1 the currently law expires, 
we go back to the old law, which Admiral McConnell testified under oath 
did not allow him to gather between 50 percent and two-thirds of the 
information we otherwise would gather from those who are suspected 
terrorists or terrorist affiliates around the world.
  Unless you think the Islamic radicals who are plotting to kill us are 
for some reason going to have a dramatic change of heart before the 
first week of February and, therefore, we don't need the law, this 
doesn't make a whole lot of sense. If that is the intention here, then 
maybe this body should, in the spirit of wishful idealism, pass 
legislation renouncing wars as an instrumental policy and hope the 
whole world will follow it. Unfortunately, Osama bin Laden and al Qaeda 
are not likely to be assuaged any more than Hitler was in the decade 
following the signing of the Kellog-Briand Pact outlawing war. No, 
these people made it very explicit they want to come here, or go 
anywhere, and kill us; and there is no indication that's going to 
change within the next 2 weeks.
  I don't want to be or appear unfair to the leadership of this body, 
for they do recognize in their RESTORE Act, which would repeal the core 
provisions requested by Admiral McConnell, that the need to defend our 
Nation will require a commitment beyond 180 days. Their new proposal 
has a sunset date which is approximately 2 years from now. Now, when I 
first saw this, my immediate reaction was, again, one of bewilderment. 
Such a truncated time-frame would require a great deal of optimism 
concerning the conduct of the war against Islamic radicalism by the 
Bush administration. On reflection, this did not seem to be a likely 
explanation. For even President Bush has repeatedly stressed that we 
are engaged in a prolonged battle with those who would seek to kill us.
  So an alternative explanation of the short sunset might be that the 
nature of the threat is such that the next occupant of the White House, 
whoever that might be, will have it in their power to bring an end to 
terrorism's war on us within 10 months of their inauguration. This, to 
put it mildly, is quite a leap of faith. However, it appears that FISA 
has become a faith-based initiative in the 110th Congress. For if there 
is any truth to recent press accounts, it appears that one of the 
proposed solutions to the current stalemate over FISA in the other body 
would be to extend the terms of the Protect America Act for an 
additional 12 to 18 months. The superficial logic of such an extension 
would enable the next administration to change the direction of foreign 
intelligence gathering. Despite the fact that the vernacular of 
``change'' has come to dominate the race for the White House, I would 
suggest it has little or no relevance to the challenge posed by 
terrorists and their network.
  One thing is abundantly clear, Madam Speaker, that terrorists are not 
going to change their objective. Our policy as a Nation must begin with 
the recognition of reality. However inconvenient or discomforting it 
may be, we must recognize that meeting the challenge posed by those who 
seek to kill us is going to be a long-term challenge. It will, 
therefore, require a long-term investment in our security. We can't 
just be thinking about 6 months or 12 months or 18 months or 2 years. 
The gravity of the challenge that we face requires a commitment which 
is commensurate with the serious nature of the threat.
  There is absolutely no excuse for this failure to pursue a permanent 
reauthorization for intelligence measures which are critical to the 
safety of the American people. We must send a clear message to the 
terrorists that we understand the nature of their struggle. There must 
be no doubt in their minds that we will never forget what they've done, 
or that we are committed to the long haul.
  There is no excuse for this body not providing Admiral McConnell with 
the tools he has asked for and doing so on a permanent basis. We know 
this policy of fits and starts isn't going to satisfy the leftist 
blogosphere anyway. And more importantly, it undermines the necessary 
confidence of those in the intelligence community that there will be a 
long-term continuity in the law.
  Unfortunately, the majority party's RESTORE Act, which passed this 
Chamber last November, did not reflect what Admiral McConnell and the 
Intelligence Committee told us it needs as a minimum. The idea that a 
court order should be required before surveillance can take place 
against a foreigner overseas is precisely the thing that Admiral 
McConnell warned against and which he said had made it impossible for 
him to collect that necessary intelligence.
  While my friends on the other side of the aisle are fond of the 
rejoinder that they only require a basket warrant under their version 
of the law, that does little or nothing to respond to the admiral's 
concern. For even if it is a basket, the intelligence community is 
going to have to identify every piece of fruit in that basket. In the 
real world of intelligence, this is simply unworkable.
  And what is worse, the language found in section 282 of the majority 
party's RESTORE Act creates even additional problems. The language that 
was passed in this body includes a section entitled ``Treatment of 
Inadvertent Interceptions.'' Now, this deals with a situation where the 
intelligence community believes in good faith that they are dealing 
with a foreign-to-foreign communication, but inadvertently they capture 
a communication that deals with a foreign-to-domestic call. And the 
language in the majority party's act says that you cannot use that 
information for any purpose; cannot be disclosed, cannot be 
disseminated; cannot be used for any purpose or retained for longer 
than 7 days unless a court order is obtained or unless the Attorney 
General determines that the information contained within indicates a 
threat of death or serious bodily harm to any person.
  Now, this means simply that if we have a conversation or 
communication involving Osama bin Laden on one hand and someone in the 
United States, we didn't know he was going to call the United States 
beforehand, but we now have captured that communication and there is no 
indication that what is said or contained in that communication 
concerning a threat of death or serious bodily harm to any person, but 
in that conversation something indicates where Osama bin Laden happens 
to be at that time or where he is going to be in a very short period of 
time, we couldn't use that information for any purpose unless we went 
through a process of finding the Attorney General, having the Attorney 
General determine that the information contained within indicates a 
threat of death or serious bodily harm to any person.
  And, actually, the Attorney General would have to break the law to 
make that finding because all the information indicates is where Osama 
bin Laden is. He is not at that time making any threat against anybody. 
Now, simply put, that's nonsense. That's not the way we handle legal 
wiretaps in the United States involving someone who is, let's say, a 
Mafia member. If you have a wiretap on someone who's a Mafia member and 
he calls someone who is not also a target and that communication 
indicates where the Mafia member is or he's about to be and you want to 
capture him, you can use that information; you can use that information 
for any purpose.
  But we don't allow that here in this bill, which means that Osama bin 
Laden or another terrorist has greater protection under this law as 
passed by this House, the majority party's bill, than an American 
citizen who is accused of a crime in the United States. That makes no 
sense.
  Now, to be fair, the majority responds to this criticism by saying 
that

[[Page H342]]

language is found in section 22 of the bill which provides this: it 
would not ``prohibit the intelligence community from conducting lawful 
surveillance necessary to protect Osama bin Laden or any other 
terrorist or terrorist organization from attacking the United States.'' 
That's their catch-all; it takes care of the problem. But it does not. 
Why? The problem with this logic is that the qualification that the 
surveillance must be ``lawful'' is obviously affected by what is found 
elsewhere in the law, including the language found in section 282 that 
I just discussed. Thus, by its own terms, any assertion we will be able 
to listen to the conversation of Osama bin Laden, as I just suggested, 
must be read in light of the bill and, therefore, would not allow us to 
act in a timely fashion.
  Not only did the majority party's legislation, which passed this body 
in November, fail to address the needs of the intelligence community, 
it also added insult to injury by throwing under the bus those 
telecommunications providers who responded to the call of their 
government after 9/11. And if the press reports are true, the issue of 
liability protection for these companies is one of the major sticking 
points of FISA in the other body.
  Now, let me suggest that the failure of Congress to address this 
liability issue will have telling consequences, not only for those 
companies who came to the aid of their country at a time of great 
peril, but for our Nation as well.
  Failure to act on this critical issue would send this message to the 
American people: if you are stupid enough to respond to our government 
when our fellow citizens are threatened by a cataclysmic attack, the 
very government which sought your help will not be there for you when 
the ideologues come after you with lawsuits. You might say that this is 
the majority's position on the matter, the reverse Good Samaritan act.

                              {time}  1545

  Do you know what the Good Samaritan law is? It's a law where we grant 
immunity upon a doctor who comes upon an automobile accident, immunity 
from prosecution. Why? Because we think it is better to have him or her 
attempt to help someone that they come upon at the time of an accident 
and not have to be worried about a lawsuit later on. Now, does this 
sometimes allow a doctor to screw up, a malpractice, and not be sued? 
Yes, it does. But we made the judgment that on balance it is better to 
have people coming to the aid of their countrymen, coming to the aid of 
someone who is in need, and here we have said don't dare come to the 
aid of your country because afterward you might be sued.
  When I was a young person learning how to type, we used to type 
something that said, ``Now is the time for all good men to come to the 
aid of their countrymen.'' That was the way you learned to type. We'd 
have to change that now: ``Now is the time for all good people not to 
come to the aid of their countrymen unless they have got a lawyer and 
enough money to defend themselves against subsequent lawsuits.'' This 
would be a terrible precedent for future generations with respect to 
future conflicts, which, if history is any guide, are certain to occur. 
The failure to step up to the plate on this issue can only serve to 
erode our national ethos and a willingness to respond to future crises.
  It is time, Madam Speaker, to transcend ideology and to do the right 
thing. And this has nothing to do with what you think of President 
Bush. It has nothing to do with what you think about the war in Iraq or 
the larger war on terrorism. It's not a Republican or a Democratic 
issue. We're going to have a change of administrations in about a year 
from now, and whoever that President might be, we must not do anything 
which would detract from his or her ability to marshal all the 
resources and support necessary to defeat the enemies of our Nation. 
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 appeal of the Nation in the aftermath of the tragedy of 
9/11 by seeking to help prevent its occurrence.
  This ideologically driven abandonment of those who relied on the word 
of their government following the worst attack on our Nation since 
Pearl Harbor hardly qualifies as a profile in courage. If there is any 
culpability to be found from the safe vantage point of 20/20 hindsight, 
it's not with the communication provider. Rather, if any fault is to be 
found, it is with the government itself, and the proper recourse lies 
within the political process. That's why we have elections. On this 
issue, it is my belief that the American public will overwhelmingly 
understand the unfairness of walking away from those who responded when 
the memory of over 3,000 dead Americans was the only known fact at the 
time. Perhaps it is this reality which makes the lawsuit option more 
appealing than the normal remedy of the democratic process.
  It is indeed ironic that at a time when such respect has been 
accorded to the Greatest Generation, and appropriately so, in my 
estimation, we would through our inaction eschew the ethos of service 
to our country after it has been attacked. It is particularly odd in 
the light of the fact that there was grave concern that we would be hit 
again. In fact, you will all recall that this fear was so prominent 
that a Member of the other body temporarily closed his office. This was 
the environment produced by 9/11, and we should not reward those who 
rose to the defense of their country with ingratitude and the prospect 
of lawsuits. For in the end, if we are to prevail against the 
terrorists, a tireless, relentless commitment much like that of the 
generation before will be required. I would hope we would send a 
message to all who were asked to take a stand to protect our citizens 
that we will likewise be with you.
  There is a serious misconception about what is a allowed under the 
Protect America Act, which is about to expire. In her statement in 
support of the majority party's RESTORE Act, which made those changes 
in the compromise reached by Admiral McConnell I spoke of before, the 
Speaker observed this: that ``all of us want our President to have the 
best possible intelligence, our President and our policymakers, so they 
can do the best possible job to protect the American people. But no 
President, Democrat or Republican, should have the authority, to have 
inherent authority, to collect on Americans without doing so under the 
law.''
  Let me point out there is absolutely nothing in the Protect America 
Act which would allow the President to target Americans or U.S. persons 
outside of the law. The Protect America Act did nothing to change this 
aspect of law which has existed since 1978. The problem addressed by 
the soon-to-expire Protect America Act related to changes in technology 
which led to gaps in our ability to listen in on conversations by 
foreign terrorists outside the U.S. This stifling of the capability of 
our Nation's intelligence community was unrelated to any other 
considerations envisioned by the Foreign Intelligence Surveillance Act 
in 1978.
  In short, the definition of ``electronic surveillance'' constructed 
almost 28 years ago has not kept pace with changes in technology. When 
FISA was enacted, almost all international communications were wireless 
and almost all local calls were on a wire. Over time the evolution of 
our telecommunications technology has reversed this state of affairs, 
has turned it upside down. Today most intelligence communications are 
transmitted by wire. Even though most international communications were 
not considered to be subject to the FISA Act in 1978, now they are 
subject to the FISA warrant requirement simply because they are 
transmitted by wire. That clearly was not the intention of the law. 
Thus, changes in technology have brought communications within the 
scope of FISA which Congress did not cover in 1978. Now, this is simply 
no way to operate in the age of weapons of mass destruction where 
terrorists are seeking to obtain them. Our intelligence policy must be 
made by policymakers, not by technological default.
  Madam Speaker, the adoption of the Protect America Act last August 
was designed to address this very issue and to assure that, if Osama 
bin Laden were to place a call into the United States, there would be 
no obstacle placed in the way of our ability to uncover any murderous 
scheme aimed at innocent Americans. Admiral McConnell told us what he 
needs to prevent Osama bin Laden from succeeding.

[[Page H343]]

However, the majority party in this body has made a dramatic U-turn 
with the so-called RESTORE Act. Their bill responds to Admiral 
McConnell with the rebuff that ``we know better and that we will 
substitute our own judgment for that of the Director of National 
Intelligence.''
  Now, please don't misunderstand me. As a Member of this body, I am 
the first to defend our right to exercise our oversight 
responsibilities as a coequal branch of government. Those in this body 
certainly have the prerogative to pursue a different course concerning 
our national security policy. However, based upon Admiral McConnell's 
expertise and service in the last two administrations, one Democrat and 
one Republican, 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.
  This burden of overcoming the expressed needs of our intelligence 
community should be considered all the more difficult in light of the 
fact that the impact of the Protect America Act on the privacy rights 
of Americans is itself de minimis. There are two things I would hope we 
would keep in mind:

  First, if the intelligence community targets someone inside the 
United States, they must first obtain a court order from the FISA Court 
under the law that we passed in August, continuing what has been the 
case before. Secondly, if the intelligence community surveils a 
communication where both ends of the communication are in the United 
States, the intelligence community must obtain a FISA Court order. 
Furthermore, if Osama bin Laden calls a U.S. person within the United 
States, the end of the conversation conducted by the U.S. person would 
have to be minimized, and that's a term of art, minimized under the 
existing procedures of the 1978 act. Let me once again emphasize the 
minimization process which is applied in cases where information has 
been inadvertently obtained from a U.S. person is not only in the 
original FISA statute but is something that we have been familiar with 
on the criminal side for decades as well. It is not something we 
dreamed up for the FISA Act. It is not something we put into the 
Protect America Act. It is something that has been within the fabric of 
the U.S. criminal justice system for at least five decades.
  The Protect America Act does nothing to alter the definition of 
``electronic surveillance'' under the 1978 act which determines when a 
FISA warrant is required. So under the scenario where a U.S. person 
located in the U.S. is involved, nothing would change. The minimization 
requirements under the law remain intact and are intact today.
  Finally, the Speaker's comment about the ``inherent authority of the 
President'' would not and could not be affected by either the Protect 
America Act or the leadership's attempt to alter the compromise with 
Admiral McConnell under the RESTORE Act. Such rhetoric has no relevance 
to this debate. The majority's law, the majority's bill, the RESTORE 
Act, which passed this body on November 15, represents not so much a 
rejection of the claims of executive authority as it does the rejection 
of the actions taken by this House as recently as August 2007. The 
language of the majority party's bill places burdens on the 
intelligence community which have nothing to do with the protection of 
civil liberties of Americans.
  As a matter of law, the FISA appeals court set the record straight in 
its decision of In Re Seals by stating that all courts, to have 
addressed the issue of the President's inherent authority, have ``held 
that the President did have inherent authority to conduct warrantless 
searches to obtain foreign intelligence information.'' Not some courts, 
not a court, not just the FISA appeal courts, but all Federal courts 
have so found. Nothing does or could alter the President's inherent 
authority under the Constitution. So it's not pertinent to this debate.
  And finally, the Speaker made the assertion that the majority party's 
bill protects Americans by providing the Director of National 
Intelligence with the flexibility he has requested to conduct 
electronic surveillance of persons outside the United States.
  Now, this is the most puzzling of all. Why would Admiral McConnell be 
happy with legislation which has the effect of replacing what he sought 
as recently as August of this last year? If the claim were true, it 
would in essence place Admiral McConnell in the position of opposing 
himself. However, it's not necessary to engage in speculation because 
the admiral has been the most vocal defender of the agreement reached 
by Congress in August. In fact, this is what he said to the Judiciary 
Committee of the other body:
  ``The Protect America Act, passed by the Congress and signed into law 
by the President on August 5, 2007, has already made the Nation safer 
by allowing the intelligence community to close existing gaps in our 
foreign intelligence collection.'' He goes on: ``After the Protect 
America Act was signed, we took immediate action to close critical 
foreign intelligence gaps related to the terrorist threat, particularly 
the preeminent threats to our national security.''
  It sure sounds like an endorsement to me. As a matter of fact, it 
suggests that if we get rid of the provisions of the Protect America 
Act, as suggested by the majority, that we would be opening up the 
foreign intelligence gaps that we had previously closed. Why anyone 
would think the admiral would support legislation which would do this 
is a puzzle, to say the least.
  Now, why is all this so important? The manner in which we approach 
FISA is of such critical importance because of its direct connection 
with the larger question of homeland security. I think we ought to do 
whatever is necessary and is constitutional and lawful to prevent 
another attack against our homeland, but we should not put ourselves in 
the position of having to get it right every time. Perfection is not 
possible in this world. Overseas intelligence collection is absolutely 
a critical component to developing a successful homeland security 
strategy.
  The relationship between foreign intelligence and the protection of 
our homeland is very real. Here's how Admiral McConnell explained it to 
our committee:
  ``In the debate over the summer and since, I have heard individuals 
from both inside and outside the government assert that threats to our 
Nation do not justify this authority,'' that is, the authority he asked 
for. ``Indeed, I have been accused of exaggerating the threats that 
face our Nation. 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. And let me just parenthetically mention the reason why it's 
limited to 3 years is that is the limit of the NIE's reach.
  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 is likely to continue to focus on prominent 
political, economic, and infrastructure targets with a goal of 
producing mass casualties, visually dramatic destruction, significant 
economic aftershock, and fear among the United States population.

                              {time}  1600

  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.
  Now this is the threat we face today, and one that our intelligence 
community is challenged to counter. This is the real issue. This is the 
800-pound gorilla in the room, if you will, and it remains the central 
question for us. How do we best protect the American people from 
another cataclysmic attack? As the National Intelligence 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 
here. Although we have been successful in thwarting another attack 
since 9/11, there are no guarantees in this business.
  Independent sources such as Brian Jenkins of the Rand Corporation 
have stressed that our intelligence capability is a key element in our 
effort to

[[Page H344]]

protect our homeland. He says this: in the terror attacks since 9/11, 
we have seen combinations of local conspiracies inspired by, assisted 
by, 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.
  Again, the development of a comprehensive homeland security strategy 
cannot be conceived in isolation from the need for surveillance of 
terrorists overseas. The Director of National Intelligence has told us 
what he needs and, unfortunately, that is not encompassed by the 
RESTORE Act, which passed this body in November. The expiration of the 
Protect America Act on February 1 will leave us without the minimum 
acceptable threshold of protection negotiated with Admiral McConnell 
last August.
  The gravity of the potentially cataclysmic consequences of a failure 
to get it right presents a threat not only to our national security but 
the protection of our rights as Americans. Anyone concerned, and I hope 
that is everybody, about the protection of civil liberties should be 
most alarmed about the potential consequences of a successful terrorist 
attack on the United States with weapons of mass destruction. This is 
the real threat to civil liberties acknowledged by the U.S. Supreme 
Court in the Keith case when they noted that were the government, that 
is the U.S. Government, to fail ``to preserve the security of its 
people, society itself would become so disordered that all rights and 
liberties would be endangered.''
  In like manner, Brian Jenkins notes that several national commissions 
convened both before and after 9/11 reached the same conclusion. All 
agreed ``that the United States has to prepare for catastrophe.'' They 
also warn that ``national panic in the face of such threats could 
imperil civil liberties.''
  Finally, Mr. Speaker, the 9/11 Commission itself issued the following 
observation concerning the relationship between national security and 
civil liberties: ``The choice between security and liberty is a false 
choice, as nothing is more likely to endanger America's liberty than 
the success of a terrorist attack at home.''
  Mr. Speaker, there's nothing more important for us to confront than 
the expiration of the existing FISA law on February 1 of this year. I 
would beg us, as a collective body, both the House and the Senate, to 
come together to work out an answer to this problem, and respond to the 
request by Admiral McConnell for us to continue to give him those tools 
necessary to gather that information so that we cannot only know what 
the terrorists want to do, but to allow us to take timely action to 
prevent them from succeeding.


               A COLD WAR ERA STATUTE IN A WORLD OF WMDs

  The changes made by the Protect America Act responded to the needs of 
our intelligence community. That act meets our national security needs 
without in any way departing from the framework of the original FISA 
statute. At the time of the adoption of the 1978 act, our Nation was in 
the midst of a cold war with the Soviet Union. FISA was designed to 
accommodate the need to intercept overseas communications without prior 
court approval. The failure to capture such communications--including 
those coming into the United States--was recognized as potentially 
damaging to our national security.
  Now, 29 years later, our adversary operates undeterred by balance of 
power calculation, and its surreptitious means of operation are 
conceived with the express purpose of avoiding detection in order to 
succeed in killing innocent civilians. Can anyone seriously suggest 
that there is not an equally compelling need to uncover the plans of 
these murderers, regardless of the intended destination of the call? I 
don't think so, and believe that it would be a serious error to move 
away from a rationale that remains as valid today, if not more so than 
it did in 1978.


             Pakistan as an Example for the Need for Intel

  In this regard, is there anyone who has been following events in 
Pakistan who does not have an appreciation for the need for the 
greatest flexibility in our foreign intelligence collection. Although I 
am sure that we all hope for an outcome in Pakistan which entails 
stability and democratic elections, our national security policy cannot 
be based upon hope. This is a nation with nuclear weapons and a segment 
of the population which subscribes to radical Islamic ideologies. We 
need the best foreign intelligence possible to ensure that if the 
unthinkable was ever to happen that we are in the best possible 
position to detect any potential transfer of nuclear materials or a WMD 
that could end up in the hands of terrorists positioned in the United 
States. Good foreign intelligence is essential to the protection of the 
American people.

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