[Congressional Record Volume 154, Number 23 (Tuesday, February 12, 2008)]
[House]
[Pages H862-H867]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  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. Well, here we go again, Mr. 
Speaker. As Yogi Berra once put it, ``This is like deja vu all over 
again.''
  When the Director of National Intelligence, Admiral McConnell, came 
to the Congress for help, he was only given a 180-day authority to 
conduct surveillance which he described at the time as necessary to 
close our ``critical intelligence gaps.'' Of course, that authority 
expired on February 1, and the 2-week extension of the Protect America 
Act expires this Friday. Now, while the Democratic majority's so-called 
RESTORE Act passed by this body recognized the need to defend our 
Nation beyond 180 days, it would also have repealed core provisions 
requested by Admiral McConnell, and it also contained a sunset date 
approximately 2 years from now. While the other body has just passed 
this evening a 6-year extension of the new FISA bill, it remains to be 
seen how this will be reconciled with the RESTORE Act passed by this 
body.
  It is certainly my hope that this body will affirm the bipartisan 
agreement reached by the Senate this evening. It is in concert with the 
outline of a bill supported by 21 Members of the majority side in a 
letter they sent to the Speaker just several weeks ago. In my 
estimation, there is no issue of greater importance to our Nation at

[[Page H863]]

the present time. The surveillance of foreign terrorists is critical to 
our ability to protect our homeland and to assure the safety of the 
American people. The other body has risen to this challenge by passing 
legislation that may not be perfect but which does respond to the basic 
concerns laid out by Admiral McConnell.
  Yet, according to press accounts I've seen, some have suggested that 
the expiration of the Protect America Act wouldn't be that 
consequential because they say it would not interfere with surveillance 
which has already begun. Well, let me suggest that even if that were 
the case, it completely ignores the impact on new terrorist 
communications which may arise. For instance, if we get word on 
Saturday, February 16, that an al Qaeda member in Kandahar is on the 
line with someone in Munich on a call that travels through a New York 
switch, this is a conversation which should be of interest to us. The 
point is, if the Protect America Act is allowed to expire, the bill in 
the Senate is not passed, this terrorist communication may not be 
intercepted.
  I would add that we have had plenty of time to view this issue. We 
have had plenty of discussion on the relevant committees, and now the 
bipartisan bill that passed the other body is available for us to act 
upon.
  What must the rest of the world, much less the terrorists who seek to 
kill us, think of the national security policy that we have displayed 
of fits and starts? This hardly resembles the actions of a super power 
determined to protect its citizens from such an ominous outcome. The 
only hope that we can have is that such indecision perhaps will be 
construed as a plan to confuse the terrorists, double jujitsu, if you 
will.
  On the other hand, those of us who view the rest of the world through 
the jihadist prism may be picking up a very different message 
concerning the level of our determination.
  This on again, off again policy of terrorist surveillance has to end. 
We must give Admiral McConnell and those in the intelligence community 
under his charge the tools necessary to protect the American people, 
and we must do so on a permanent basis.
  Does anyone realistically believe the imposition of arbitrary sunsets 
every few weeks or every few months somehow places us in the position 
to return to a pre-9/11 world? Such wish fulfillment is no basis for 
the formulation of national security policy, for we no longer live in a 
world where wishful thinking is permissible if we are to fulfill our 
obligation to those who have sent us here to represent them and protect 
them. This is the first obligation of government. And after 9/11 or 7-7 
in London, Bali, Madrid, Amman Jordan, and Glasgow, we no longer have 
the option to pretend otherwise.

                              {time}  2100

  Our policy as a nation must begin with the recognition of this 
reality. However inconvenient or discomforting it might be for some of 
us, we must recognize that meeting the challenge posed by those who 
seek to kill us is going to be a long-term, not short-term, challenge. 
It therefore requires a long-term investment in our security.
  We cannot just be thinking about 2 weeks, or 21 days, or 6 months, or 
2 years out. The gravity of the challenge we face requires a commitment 
which is commensurate with the serious nature of the threat. The 
American people demand that this be our serious approach.
  Although it is my belief that a permanent reauthorization is 
therefore consistent with the history of the FISA Act, consistent with 
the threat that we face, and consistent with what the American people 
wish, the 6-year extension contained in the bipartisan language which 
passed the other body this evening is a meaningful compromise. We must 
send a clear message to terrorists that we understand the nature of our 
struggle. There must be no doubt in their minds that we will never 
forget what they have done and that we are committed to the long haul.
  I take a back seat to no one on the question of the need for vigorous 
congressional oversight of the executive branch. I spoke about this 
before I returned to this Congress after a 16-year absence. However, 
when we are told by Admiral McConnell what he needs and then this body 
does not listen and attempts to reinvent the wheel with the so-called 
RESTORE Act, there surely should be some compelling justification for 
such a rejection of the Director of National Intelligence request.
  Let me suggest that it has been more than 6 months since the 
enactment of the Protect America Act. So what is the factual basis to 
justify the dramatic changes that were embodied in the majority party's 
so-called RESTORE Act? After all this time, what is the evidence that 
Admiral McConnell was wrong? We now have the benefit of 20/20 
hindsight. It is no longer necessary for us to speculate.
  So how are the changes to the Protect America Act embodied in the 
RESTORE Act borne out by experience? We now have the basis for making 
empirical judgments; and unless there are answers to these basic 
questions, attempts to rewrite Admiral McConnell's bottom line are 
nothing more than a leap into the dark, a serious existential leap 
concerning the safety and security of all Americans.
  Or is there something else other than evidence at work here? During 
our legislative hearings in the Judiciary Committee, there were 
concerns expressed that in reaching the compromise agreement which 
became the Protect America Act that somehow the White House may have 
unduly influenced the process. There were questions raised about 
whether Admiral McConnell could speak truth to power.
  Let me first of all say that the interest of the White House in 
protecting the national security of our Nation is about as much of a 
surprise as the discovery that gambling was going on in Joe's Bar in 
the movie ``Casablanca.'' It would be more of a shock to learn the 
administration, or any administration for that matter, lacked an 
interest in a matter of such magnitude relating to its essential 
obligation to protect the American people.
  After 9/11, it should never again happen that everything that could 
be done wasn't done to ensure that we connect the dots. No, the real 
issue here was one of credibility, or so some attempted to make it, the 
credibility of Admiral McConnell concerning, as was stated by one of my 
colleagues on our committee, to speak truth to power.
  One interesting incident subsequent to the adoption of the so-called 
RESTORE Act provides us with persuasive evidence of Admiral McConnell's 
independent judgment. Regardless of how one interprets the 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. There should be no doubt in 
anyone's mind that Admiral McConnell is a man of honor who calls it as 
he sees it. This is important because he told us how he sees it; and 
unlike the bipartisan coalition in the other body, our adoption of the 
majority party's RESTORE Act proved, I fear, that we did not listen to 
him with seriousness of purpose.
  It was not enough that this man had served in Democrat and Republican 
administrations and had a distinguished naval career. After all, some 
would say we are talking about the Bush administration. So let me 
suggest, this is not about President Bush. As bumper stickers I have 
seen on the road reflect, by 1/20/09 President Bush will no longer be 
in office. We will have a new administration and a new President, 
whomever he or she will be.
  But whomever they will be, they will continue to face the same threat 
by radical jihadists whose primary aim in life is to kill us. That will 
not change. Regardless of which political party occupies the White 
House, the one advantage we will need to defend against another 
horrific attack will be the need to learn of their plans before they 
are carried out, to gather intelligence; and if we are to be successful 
in doing so, the surveillance of foreign terrorists will be critical to 
this endeavor.
  Independent sources such as Brian Jenkins of the RAND Corporation 
have stressed that our intelligence capability is a key element in our 
effort to protect our homeland. He states that 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.

[[Page H864]]

  The development of 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 in the so-called 
RESTORE Act, which passed this body, this body, in November. Unless the 
bipartisan agreement which passed the other body this evening is 
adopted, we will be without the minimum acceptable threshold of 
protection negotiated with Admiral McConnell last August.
  Although this body did adopt the so-called RESTORE Act in November of 
last year, that legislation would impose additional burdens on the 
intelligence community which undermined the essential nature of the 
compromise reached with Admiral McConnell. Furthermore, the RESTORE Act 
punted on the critical question of whether retroactive protection could 
be extended to those communication providers who responded to the call 
for help from their government in the wake of 9/11.
  What does that mean? It means simply this: while we recognize in 
other situations that a Good Samaritan law makes sense; that is, we 
want to encourage doctors or health care providers who come upon an 
accident on the highway to utilize their expertise to help those who 
might be injured at that location without regard to the possibility of 
lawsuits thereafter, even though we know that that might, in some 
cases, make it impossible to sue a doctor for what otherwise would be 
considered malpractice. We make that judgment because we believe on 
balance it is for the good of society and in most cases will allow 
extra protections or extra treatment that otherwise might not be there 
for someone who has been the victim of such an accident.
  Similarly, the Senate bill recognizes how important it is that we 
have the intelligence necessary to identify the threat that is posed by 
those who would wish to kill us and destroy us in the name of some 
distorted version of religious purpose.
  And so what we have said, at least what the other body has said, what 
the President has asked for, what Admiral McConnell has asked for is a 
type of national Good Samaritan law with respect to the collection of 
foreign intelligence. In other words, when in an emergency situation, 
in a terrorist scenario, in the aftermath of 9/11, when the government 
desperately needs to be able to gather as much information as possible 
with respect to foreign intelligence, foreign actors who wish to do 
harm to us, the government reached out to various companies who are 
able to aid them in that way, and all the bill that has passed the 
Senate does, and the bill which hopefully will be before us sometime 
this week, all it does is say that if you responded in good faith to 
the request of the Federal Government to assist in the collection of 
information about foreign intelligence relative to the threat that is 
posed by this terrorist effort around the world, we will hold you 
harmless. We will have you immune from lawsuits.
  Now, when this question was presented to us in the Judiciary 
Committee, one of my friends on the other side of the aisle, in 
opposing that, said these people have many high-priced attorneys and 
they can respond to that themselves. Now, what if we took that as our 
approach to a Good Samaritan law with respect to accidents on the 
highway? We would say, well, we don't have to worry because these 
doctors have a lot of money. They can hire a lot of high-priced 
attorneys. They can defend themselves in court thereafter. Do we think 
that would encourage doctors and other medical specialists or health 
specialists to assist? I think not. At least that has been the decision 
we have made in State after State after State where we have said on 
balance, for the good of society, we will create these laws.
  No, what we passed on the floor of the House, the so-called RESTORE 
Act, was the anti-Good Samaritan law. It was Good Samaritan beware: if 
you dare respond affirmatively to a request by your government and act 
in good faith to help that government obtain the information against 
foreign actors with respect to their evil intent to try and destroy us, 
you may be subjected to lawsuit after lawsuit.
  Now is this just a figment of my imagination, the imagination of 
others, the imagination of those in the Senate who brought forth this 
bill? No, because we know there are numerous lawsuits that have been 
filed against those companies that they believe responded affirmatively 
to the request by the Federal Government to assist them in gathering 
that information in the wake of 9/11.
  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. Well, my friends on the other side of 
the aisle are fond of the rejoinder that they only require a basket 
warrant under their approach. 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. And as Admiral McConnell has explained time and time and time 
again, in the real world of intelligence, this is simply unworkable.
  Furthermore, in the alternative presented by the majority in their 
RESTORE Act, which presumably they want to go to conference on and 
against which they would place the Senate bill, the language found in 
section 2(a)(2) of that House bill creates even more problems. The 
language of the majority party's RESTORE Act includes a section 
entitled: ``Treatment of inadvertent interceptions.'' It deals with 
this situation: the intelligence community believes in good faith that 
they are dealing with a foreign-to-foreign communications, but 
inadvertently they capture communication that deals with a foreign-to-
domestic call. And you say how could that happen? Well, in the real 
world, you can only target one end of the conversation. So when we go 
into this and we target one end of the conversation and in good faith 
believe that that is going to be foreign-to-foreign, occasionally you 
might get foreign-to-domestic. So what happens? The language in the 
majority party's bill says you cannot use that information for any 
purpose. You can't disclose it. You can't disseminate it. It 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, the information contained, indicates a threat of death or 
serious bodily harm to any person.
  Now, you might say, well, that should take care of all situations, 
shouldn't it? Well, let's say we have a conversation or communication 
involving Osama bin Laden and the communication involves someone within 
the United States, and there is no indication, no indication whatsoever 
in that communication concerning a threat of death or serious bodily 
harm to any person. But the conversation, the contents of the 
conversation, indicate the exact cave where Osama bin Laden may be. We 
would find ourselves unable to act.

                              {time}  2115

  I know that sounds absurd, but in fact that is a fair reading. In 
fact, it is the only reading of that section of the bill that the other 
side of the aisle wishes to have passed in lieu of the bill that was 
presented by the Senate today. It is simply unacceptable.
  Now, to be fair, the majority says, well, wait a second. Your concern 
is not well placed because there is language found in section 22 of the 
majority bill which provides that it would not ``prohibit the 
intelligence community from conducting lawful surveillance necessary to 
prevent Osama bin Laden or any other terrorist or terrorist 
organization from attacking the United States.'' So they say, you see, 
we have taken care of that problem. But they haven't.
  The problem with this logic is that the qualification found in that 
language that the surveillance must be ``lawful'' is obviously affected 
by what is found elsewhere in the bill, including the language 
contained in section 2(a)2 that I just discussed. Thus by its own 
terms, any assertion that we will be able to listen to the 
conversations of Osama bin Laden must be read in light of the remainder 
of the bill.
  Again, why are we going down this road? Why is the majority so 
insistent on not allowing us an up or down vote on the Senate bill? Why 
are they so insistent on the product that we produced on this floor 
that has these problems that I have just mentioned?

[[Page H865]]

  Since the enactment of the Protect America Act, the one that we 
passed on August 5, the one upon which the bill in the Senate is based, 
what facts and what evidence have arisen which would warrant second 
guessing the intelligence community and its assessment of the minimum 
requirements necessary in order to continue the protection of the 
American people? And, Mr. Speaker, I would say if this is not about 
facts, if this is not about evidence, then what is it about?
  It should be noted that the bipartisan legislation passed by the 
other body does not contain this entirely unacceptable language I 
mentioned from section 2(a)2 of the House bill.
  Now, surely one thing not at issue is the effect of the Protect 
America Act and its progeny, the bill produced in the Senate today. Its 
effect on the civil liberties of Americans is not at issue. Let me 
point this out. There is nothing contained in the Protect America Act 
or in the bill passed by the Senate today 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 the law, which 
has existed since 1978, nor does the Senate bill.
  So, there are two things which must be kept in mind. First, if the 
intelligence community targets someone inside the United States, the 
community must first obtain a court order from the FISA court. That 
does not change.
  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 or another terrorist calls a U.S. 
person within the United States, the end of the conversation conducted 
by the U.S. person, the person he called to in the United States, that 
end of the conversation would have to be what we call in the law 
minimized under the existing procedures of the 1978 act.
  Let me again emphasize that 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 with 
which we have been familiar on the criminal side for decades as well.
  In other words, when a court allows for a wiretap in a criminal case 
in the United States, a domestic criminal case, again, the wiretap is 
only on one end. So they put a wiretap on a Mafia boss. That wiretap 
captures conversations from that particular phone to many, many 
different others, and if in fact it goes to somebody who is not 
involved whatever in the criminal enterprise, that conversation, that 
part of the conversation dealing with that person is minimized. If, 
because of something that attracts the investigator's attention on that 
end of the line going towards criminal investigation must go forward, 
then they have to go to court to get a court order with respect to that 
individual. That is the same way we handle minimization in these FISA 
cases.
  In an interesting exchange during our Judiciary Committee hearing on 
FISA, Admiral McConnell was queried as to how many Americans have been 
wiretapped without a court order? The direct response by Admiral 
McConnell was ``none.'' He went on to say this: ``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 person calls into 
the United States, we have to do something with that call, that process 
is called minimization. It was the law in 1978. It is the way it is 
handled.''
  Any suggestion that the intelligence community could somehow operate 
outside the law because of anything we did in adopting the Protect 
America Act this past August or in adopting the bill sent over from the 
Senate is a regrettable reversion to scaremonger.
  I would suggest that the attempt to scare the American people into 
believing we have jeopardized their civil liberties by exposing them to 
warrantless surveillance does a disservice to rational political 
discourse. And I would also suggest that except for those on the 
ideological fringes who might fear their government more than they fear 
al Qaeda, it will also prove to be a failed political strategy.
  You don't have to like President Bush, you don't have to countenance 
the war in Iraq, to understand who the real enemy is, those who killed 
over 3,000 of our fellow citizens on September 11. Nothing in the 
Protect America Act, nothing in the bipartisan compromise which just 
passed the other body, would adversely affect constitutionally 
protected privacy interests.
  In the seminal Fourth Amendment privacy case entitled Katz v. United 
States, the Supreme Court held that the protection of the Fourth 
Amendment extended to cases involving electronic surveillance of oral 
communications without the requirement of a physical intrusion.
  Before that, there was a question as to previous decisions by the 
court and whether or not these protections would go if there was no 
physical intrusion. In Katz v. United States, the court held that the 
Fourth Amendment did extend to cases involving electronic surveillance 
of oral communications, even though there was no physical intrusion. At 
the same time, however, the Supreme Court expressly stated that 
national security cases were expressly outside the purview of its 
holding in that case.
  Furthermore, in his concurring opinion, Justice ``Whizzer'' White, I 
think his picture can be found in Webster's Dictionary besides the word 
``moderate,'' made the following observation: Speaking of the court he 
said, ``We should not require the warrant procedure and the 
magistrate's judgement if the President of the United States or his 
legal officer the Attorney General has considered the requirements of 
national security and authorized electronic surveillance as 
reasonable.''
  In the debate before us where the issue involves the surveillance of 
foreigners outside the United States, the civil liberties concerned are 
minimal, if not nonexistent. What do I mean by that? In a case where 
terrorists might call a U.S. person, the FISA minimization procedures 
which have applied since 1978 continue to protect the privacy interests 
of Americans and legal residents in the United States.
  Thus, in arriving at a definition of reasonableness on the Fourth 
Amendment, it comes down to how serious one deems the threat of another 
9/11 to be. In fact, if you consider the threat of another attack on 
the American people to be serious, it would be a terrible mistake to 
walk away from what Admiral McConnell has told us he needs, for there 
is perhaps know greater threat to civil liberties than the prospect of 
another successful attack on the United States. It was for this very 
reason that the 9/11 Commission itself made the observation that ``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.''
  Simply put, if we suffer a terrorist attack at home, another 
terrorist attack at home, the response of the American people might 
very well be to cut back on our protection of civil liberties in order 
to protect us from such terrorist attack.
  The 9/11 Commission has suggested that if we do those things that are 
necessary in our and are constitutional, we ought not to face that 
false choice of security versus liberty. It is in this context that we 
must view the legislation currently before this body. It is not a zero 
sum game, where increasing our Nation's security necessarily comes at 
the expense of liberty. This is a false dichotomy.
  This is not an abstract philosophical debate. No. It involves the 
targeting of foreign individuals outside the United States. It was for 
this reason that the United States Supreme Court in the Keith case, 
much like the 9/11 Commission, noted that were the government to fail 
``to preserve the security of its people, society itself would become 
so disordered that all rights and liberties would become endangered.''
  Mr. Speaker, yesterday I had the opportunity to observe the FISA 
debate taking place in the other body. The senior Senator from my State 
of California, for whom I have great respect, was arguing for more 
restrictive language, positing FISA as the exclusive means for the 
conduct of electronic surveillance.
  Let me say that this concept is already embodied in the current FISA 
statute and there is nothing whatsoever in the Protect America Act or 
the

[[Page H866]]

bill that has come to us from the Senate which in any way alters or 
affects that. It is irrelevant to the reason for which Admiral 
McConnell came to the Congress and asked us to close critical gaps in 
our foreign intelligence.
  First of all, it is not clear there was an attempt by Congress to 
occupy the field when the issue is foreign intelligence or foreign 
surveillance of non-U.S. persons in contrast to the definition of 
electronic surveillance within FISA itself. It was recognized at the 
time that there were constitutional limits on how far the Congress 
could go. There was testimony to that effect by former Attorney General 
Griffin Bell, with whom we are all familiar.
  Secondly, the House conference report on the 1978 FISA statute 
contains an interesting admission concerning the scope of the coverage 
by the statute. The House conference report recognized that the 
statute's restrictions might impermissibly impinge or infringe on the 
President's constitutional powers. The report acknowledges that ``the 
conferees agree that the establishment of this act of exclusive means 
by which the President may conduct electronic surveillance does not 
foreclose a different decision by the Supreme Court.''
  The conference report explained that Congress intended in FISA to 
exert whatever power Congress constitutionally had over the subject 
matter to restrict foreign intelligence surveillance, and to leave the 
President solely with whatever inherent constitutional authority he 
might be able to invoke against Congress' express wishes.
  The legislative history in the Senate also reveals that the 
provisions in FISA were intended to exclude certain intelligence 
activities conducted by the NSA from the coverage of FISA.
  With respect to 50 USC 2511(2)(f), it is clear that the legislation 
does not deal with international signals intelligence activities as 
currently engaged in by NSA in electronic surveillance conducted 
outside the United States. The legislative history also makes clear the 
definition of electronic surveillance was crafted for this very same 
reason.
  It is particularly noteworthy that the FISA Court of Appeals itself 
states in ``In re: Sealed Case'' that ``all the other courts to have 
decided the issue held that the President did have inherent authority 
to conduct warrantless searches to obtain foreign intelligence 
information.'' The court further stated, ``We take for granted that the 
President does that have that authority.''
  The United States Supreme Court itself in the Keith case held that 
the warrant requirement would apply to national security investigations 
involving purely domestic targets with no suspected ties to a foreign 
power. However, Justice Powell carefully distinguished this holding 
from foreign intelligence cases in writing that ``the instant case 
requires no judgment on the scope of the President's surveillance power 
with respect to the activities of foreign powers.'' It is thus clear 
that the United States Supreme Court itself has drawn a commonsense 
distinction between domestic surveillance and foreign surveillance.
  The Protect America Act and its progeny, the bipartisan Senate bill 
passed today, they respect these parameters in that their focus is on 
non-U.S. persons located overseas where an American that is not the 
target of the surveillance. If a U.S. person happens to be on the other 
ends of a conversation with Osama bin Laden, the remedy, as I said 
before, is minimization, purging the non-targeted American's 
contribution to the conversation.

                              {time}  2130

  Thus, there is no need to bar the use or dissemination of such 
information as required under the terms of the majority's so-called 
RESTORE Act. Privacy and civil liberty considerations are simply not 
implicated to any significant degree in the foreign surveillance 
context.
  In order to reach a compromise with the House leadership last August, 
Admiral McConnell was forced to punt on the issue of those 
telecommunications providers who came to the aid of their country in 
the wake of 9/11. The RESTORE Act subsequently passed by this body 
fails to deal with this issue at all. The message delivered to these 
companies is simply that you are on your own.
  The idea that these companies should be met with the response that 
you are on your own is simply incomprehensible. They did what they did 
not because they thought about it on their own, but because they were 
responding to requests from their government in the wake of the worst 
attack on this Nation since Pearl Harbor. If there was a mistake in 
policy, which I do not believe to have been the case, but if there were 
such a mistake, the mistake was made by the government, not by those 
who were asked to help prevent another 9/11.
  Let us not forget that although we have not been the victim of 
another successful attack, from the vantage point of the post-September 
11 time frame, there was great anticipation about the prospect of 
another attack. Those who like to inveigh against the failure to 
connect the dots cannot in the same breath turn their backs on those 
who sought to make sure that such a thing did not happen again.
  Further, I would say, what kind of signal does this send to those 
who, during some future conflict, are approached by our government to 
help prevent another cataclysmic assault on our Nation? Our friends on 
the other side of the aisle should think long and hard before they feed 
these telecommunications entities to the litigation sharks. It may be a 
different war, it may be a different President, but this is the worst 
possible precedent. If you are going to tell these companies that you 
are on your own, the next time they may tell us, well then, connect 
your own dots.
  This body failed to address this critical issue, which will surely 
affect the willingness of Americans to come to the aid of our 
government when this Nation faces future peril.
  However, all Americans can find solace from the fact that the 
bipartisan legislation which passed the other body this evening does 
meet this challenge. It does say that we would grant immunity to those 
companies that responded, in good faith, to the request by their 
government to assist them in gathering this information and would limit 
it from the date of 9/11 up to the present time. Very specific, very 
specific with respect to that. And, interestingly enough, there doesn't 
seem to be dispute or hasn't been dispute about making that kind of 
prospective. But should we say that those who have helped us in the 
past in the aftermath of the worst attack since Pearl Harbor are to be 
viewed as lacking? That somehow they are to take the fall? If there 
were mistakes, they were government mistakes, and you ought not to 
attack third parties who responded in a responsible good-faith way.
  Both justice and common sense dictate that future Presidents of both 
parties may need help, may need to call on the help of the American 
people should we face another terrible event of the magnitude of 9/11.
  So, Mr. Speaker, let's be clear: this is not a partisan issue. All 
Americans of both parties have the same desire to raise their families 
in a Nation of secure communities free from the fear of another 
cataclysmic attack. The other body has considered this at some length 
and acted reasonably. We are up against a deadline at the end of this 
week. The Senate bill, unlike its House counterpart, does respond to 
the national security needs of our Nation. It is evidence of the fact 
that the majority and minority can work together to protect the public.
  On August 5, this body demonstrated, with the passage of the Protect 
America Act, that it likewise can put aside partisan differences and 
meet this most solemn obligation that we have to those who have elected 
us. Once again, we are called upon to do so.
  So I would hope, Mr. Speaker, that tomorrow we not go forward with an 
effort to have a 21-day extension of the current law and kick the can 
down the road again; that we actually come forth and debate vigorously 
and vote on the bipartisan compromise presented to us by the Senate 
today; that we face squarely the question of whether we are going to 
enact a Good Samaritan law for those companies and individuals who 
responded to the call of their country, or whether we are going to take 
a position that only an anti-Good Samaritan law makes sense in the 
context of this fight against extreme Islamo-fascism.
  Mr. Speaker, although even-numbered years have the tendency to raise

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the volume of rhetoric, the protection of the American people should 
transcend politics as a fundamental obligation of government. The other 
body has put the public interest above partisanship, and I would hope 
that we can follow their example.
  Mr. Speaker, I would ask that we have consideration of the Senate 
bill brought forth on this floor within the next 2 legislative days so 
that the people of the United States can watch their Representatives in 
this House work their will on that proposal.

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