[Congressional Record Volume 154, Number 30 (Monday, February 25, 2008)]
[House]
[Pages H1020-H1029]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXPIRATION OF THE PROTECT AMERICA ACT
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 18, 2007, the gentlewoman from New Mexico (Mrs. Wilson) is
recognized for 60 minutes as the designee of the minority leader.
Mrs. WILSON of New Mexico. Madam Speaker, I appreciate the
opportunity
[[Page H1021]]
to talk to folks this evening about something that's critical to our
country. Ten days ago a very important law was allowed to expire. It's
called the Protect America Act, and it made changes to our foreign
intelligence surveillance laws.
We passed the Protect America Act in August of this last year to
close a gap in our intelligence collection caused by changes in
technology. Unfortunately, that law had a sunset in it. It expired
after 6 months.
The Senate passed a bill, a bipartisan bill, overwhelmingly in the
Senate, and sent it over to the House. I believe that that bill, if it
were brought up on the floor of this House, would pass overwhelmingly
here as well. Consideration of that legislation is being blocked by the
liberal Democratic leadership in the House of Representatives, and it
is putting all of us as Americans at very serious risk.
Ten days. Ten days we've been going without the ability to listen to
foreigners in a foreign country without a warrant because the Protect
America Act has been allowed to expire.
I wanted to take this opportunity tonight, with some of my
colleagues, to explain why this matters, what the foreign intelligence
surveillance laws are, why we should care.
Now, I believe that the greatest accomplishment of the last 6 years
has been what has not happened. We've not had another terrorist attack
on our soil since the morning of 9/11. And they have tried.
The first line of defense against terrorism is good intelligence. The
intelligence problem has changed since the Cold War when I served in
the military. In the Cold War, our biggest enemy was the Soviet Union,
and we had no doubt about where they were. In some ways they were a
very convenient enemy. They had exercises from the same barracks every
year at the same time using the same ray of lines and the same radio
frequencies. They were very easy to find. Had they ever attacked us,
they would have been very difficult to defeat; but we know where they
were. We know what their capabilities were.
Today, the problem has completely changed. We have terrorist networks
that are hiding in the midst of civil society using commercial
telecommunications. If we can find out what they're doing, we can stop
them and prevent another terrorist attack. It's almost like it's a
Where's Waldo problem. You have to find Waldo who's hiding in the midst
of regular, everyday confusion. If we can find him, we can stop him.
The hard part is the intelligence problem. It is finding him. It's
uncovering what their plans and capabilities and intentions are. And so
that's why these laws make so much difference.
We need to be able to listen to communications among foreigners in
foreign countries, do so very quickly, so that we can act on tips as
soon as we get them, and use our great strengths in telecommunications
to uncover what our enemies are trying to do and prevent another
terrorist attack by then using our law enforcement, our military, our
financial networks to shut down and arrest and, in some cases,
eliminate these terrorist threats.
{time} 2000
I want to talk a little bit about what the Foreign Intelligence
Surveillance Act is for, and then one of my colleagues has joined me
here from Oregon, and I will yield to him whenever he is ready to
speak.
The Foreign Intelligence Surveillance Act was put in place in 1978.
It was as a result of some abuses by the intelligence community where
they had been listening to Americans, and it puts in place protections
for Americans so that if you are in America and, for foreign
intelligence reasons, the government wants to listen to you, they think
you are a spy, you have to go to a court and get a warrant. That's the
basics of it. But we do not require warrants and we never have under,
or it was never intended under the initial law to require warrants to
listen to people overseas.
America spies on its enemies. We are trying to figure out what the
North Koreans are intending to do, whether they have developed a
nuclear weapon, whether they're going to sell that materiel to someone.
Likewise, we are trying to figure out what is going on in Venezuela or
in Iran or Syria or any hotspot around the world. We seek, through our
intelligence agencies, to know the plans and capabilities and
intentions of other countries and groups around the world who may harm
us. We spy.
The Foreign Intelligence Surveillance Act says that you cannot do
that on a U.S. person in the United States without going to a special
court set up for that purpose and getting a warrant saying you have
probable cause to believe that this American is an agent of a foreign
power or this person is in America.
But the problem is technology changed. In 1978, that was the year
that I graduated from high school, the telephone was something that was
on the wall in the kitchen. The word ``Internet'' didn't exist. There
were no such things as cell phones. I mean, that was Buck Rogers stuff.
Technology changed, but the law did not change to keep pace with
technology.
Under the original Foreign Intelligence Surveillance Act, they made a
distinction among technology. It said, if it bounces over the air, you
don't need a warrant no matter where you are listening. That's because
at that time almost all international calls bounced over the air over
satellites. At the time in 1978, almost all local calls were over a
wire. And so the law was written that said if you touch a wire in the
United States, you have got to have a warrant. You are presumed to be
impacting a U.S. person. So it was technology-specific for that moment
in time.
But technology has changed. Today, almost all international traffic
goes over a wire or a fiber-optic cable. And in complete reverse from
1978, there are over 2 million cell phones in this country. So a
majority now of local calls actually bounce over the air. So we needed
to modernize the law so it was no longer technology specific. And what
happened over a period of 1 year or 2 was that the Foreign Intelligence
Surveillance Court started saying no matter where a person is, if you
are trying to listen to somebody in Pakistan, talk to somebody else in
Pakistan, you needed to get a warrant if you sought to collect that
communication by touching a wire in the United States.
This created havoc with our intelligence collection, particularly
with fast-moving terrorist targets, and we were losing access to
intelligence information from overseas. You can understand why, because
you know it's kind of hard to develop a case for probable cause for
somebody who is overseas potentially talking to somebody else overseas.
I mean, it is not like you can have the FBI go and talk to their
neighbors.
So a problem built that was compromising America's security.
I would be happy to yield to my colleague from Oregon.
Mr. WALDEN of Oregon. I appreciate my colleague's comments. I think
you have laid out very clearly the problems that we face, and I
couldn't agree more. You know, I will always remember being on these
grounds of the United States Capitol on the morning of 9/11, September
11, 2001, and the attacks that occurred on our country, and I will
always remember going back to the apartment I lived in at the time,
three blocks from the Pentagon, and the smoke from the burning roof of
the Pentagon wafted in all day because the air-conditioning was on.
I swore then, and I have kept that pledge and promise, that I would
never forget what happened to this country. And like you and many of my
colleagues on this floor and in this Congress, we said, How could this
happen? What went wrong? What was the failure? How did we miss seeing
this coming?
As my colleague from New Mexico knows all too well, because you are
on the Intelligence Committee and I'm not, there are lots of
investigations. And we said we will never let this happen. We brought
in the outside experts, the best people in the land: tactical experts,
policy experts. We did reviews, we second-guessed everybody in every
position, and we changed the law. We changed the law to protect the
lives of Americans and to prevent attack.
It is sad today to be here on this floor 10 days after the Protect
America Act has expired and know that the only people who are gleeful
about that are
[[Page H1022]]
probably residing in caves and camps in Pakistan and Afghanistan and
who knows where else. They have to be looking at us saying, What fools,
and thank you, thank you for opening the door and closing your eyes and
your ears to our communications because you won't modernize a law that
is anchored back in the 1970s.
Technology, as you have clearly pointed out, has changed. You think
about these kids who buy these cell phones that are throw-away. Or if
you are on the Internet, how do you know where somebody is or where
they're downloading or wherever? Technology has changed; the law
hasn't. And the people who seek to do our country and our people and
our allies harm, they understand technology. That's one of the lessons
we learned coming out of 9/11.
And so many people on both sides of the aisle changed a lot of
Federal laws to try to leap forward so that we would be protected, so
that our professionals, the intelligence community, would have every
tool and asset to make sure it never happened again. How many people on
this floor, how many Americans pledged after 9/11 to say we will do
whatever it takes to make sure innocent American lives are never taken
down by terrorists again? We all said that. I was in briefings on this
floor, closed door, open door, where there was that unified feeling
that we've just got to get with it. We've got to figure it out.
It's terrible tonight to be here knowing this law has expired and
that there is a bipartisan fix. Senator Rockefeller, who chairs the
Intelligence Committee in the Senate, wrote the bipartisan measure that
passed with 68 votes. More than two-thirds of the United States Senate
supported this bipartisan fix that provides Americans more protection
than the existing law, or certainly the bill that the House had.
Now, I dare say on some matters Mr. Rockefeller is no friend of
President Bush's, as he would probably tell you that. He certainly said
it publicly. But he knows in the crafting of this bill that America has
got to come first, our intelligence gathering has to come first. There
are privacy protections, but we don't close the eyes and ears of our
intelligence community listening overseas to see who's plotting to do
us harm. That bill, I dare say, if brought to this floor, would pass in
a heartbeat. Pass in a heartbeat.
And if I might just quote from a letter to the chairman of the House
Permanent Select Committee on Intelligence from both the Attorney
General and Admiral McConnell, the Director of National Intelligence,
said, among other things, this is a letter dated February 22: Our
experience since Congress allowed the Protect America Act to expire
without passing the bipartisan Senate bill demonstrates why the Nation
is now more vulnerable to terrorist attack and other foreign threats.
In our letter to Senator Reid on February 5, 2008, we explained that
the expiration of the authorities in the Protect America Act would
plunge critical intelligence programs into a state of uncertainty which
could cause us to delay the gathering of or simply miss critical
foreign intelligence information. Underlining for emphasis, they write:
That is exactly what has happened since the Protect America Act expired
6 days ago without enactment of the bipartisan Senate bill. We have
lost intelligence information this past week as a direct result of the
uncertainty created by Congress's failure to act.
Mrs. WILSON of New Mexico. Madam Speaker, one of the things that
bothers me about this is that one of the frustrations is that we can't
talk about specific instances, but the Director of National
Intelligence, Admiral McConnell, has said very clearly, and now
publicly, we've lost intelligence.
On one of my visits to one of our intelligence agencies where I was
there to oversee a particular program and get briefed on it, but when
we started out the briefing, the director of that agency said,
Congresswoman, I just want you to get a flavor for our highest priority
threads we are following today, and he passed a sheet across the table
for me to look at what exactly they were trying to, you know, the tips
that they had, the leads that they had that day that they were trying
to listen in to disrupt attacks on this country.
It is a very dynamic situation where you get a tip today, do we have
12 terrorists that are transiting Spain, that are coming from Pakistan,
where are they going? They picked up cell phones. We think we have the
numbers. Can we listen to them before they move to someplace else and
before they move to another number? Can we be as fast as they are,
because if we are not, the consequences are devastating.
And all of us remember where we were the morning of 9/11. Almost no
American remembers where you were the morning that the British
Government arrested 16 people who were within 48 hours of walking onto
airliners at Heathrow and blowing them up simultaneously over the
Atlantic, within 48 hours of killing thousands of Americans who were
just flying from Heathrow to JFK or La Guardia. We don't remember it
because it didn't happen. And it didn't happen because of the expertise
of our intelligence agencies and cooperation with the British and
Pakistani Governments. We figured it out before they walked through
security at Heathrow, and people didn't die.
I yield to my colleague from Oregon.
Mr. WALDEN of Oregon. Madam Speaker, the thing that strikes me is,
before we went out for the President's district work period, this
Congress had time to spend a full day trying to figure out whether
Roger Clemens was on steroids, used steroids, used human growth
enhancement, whatever, and this Congress couldn't take up this law to
protect America. And I dare say to my colleague and to my fellow
colleagues, that if we were, God forbid, to get attacked again, that
every committee will grab jurisdiction around here to do an oversight
hearing to find out who failed. They need to pick up a mirror and look
in it before it happens and ask that question. Will we fail America's
security? Or will we take a bill that passed by two-thirds majority
plus 2 in the Senate and put it on this floor today, tomorrow, as soon
as possible? There is nothing even scheduled for Thursday of this week,
I see. There are no bills scheduled. We have plenty of time. It is
available. Why? For the life of me, I don't understand why we take this
risk.
Mrs. WILSON of New Mexico. Reclaiming my time, there are a number of
things that bother me most about this, but here in this House, I
believe that if this bill were brought up for a vote on the floor of
the House, it would pass with the same overwhelming bipartisan majority
that it passed the Senate and it would be signed by the President, and
we would close the gap that is putting Americans at risk.
And we have a small number of people who are liberal Democrats in the
elected leadership who are blocking the will of this House. They are
preventing this bill from coming to the floor that would pass
overwhelmingly if we had the opportunity to vote. And the will of the
country is that we fix this problem, and they are standing in the way
of the will of the country.
We are joined by my colleague from Georgia (Mr. Gingrey), and I would
be happy to yield to him if he would like to join us.
Mr. GINGREY. Madam Speaker, I know that as we go through our time in
the Congress, each of us wants to be remembered for some signature
accomplishment, and Madam Speaker, I want to commend the gentlewoman
from New Mexico. I would say that maybe she's got many signature issues
that she brought before the membership of this body, but certainly this
issue of intelligence and national security is a signature issue. I
commend her for her will and determination in trying to explain to her
colleagues on both sides of the aisle an issue that may be somewhat
difficult to understand.
There is a lot of arcaneness about this issue when you try to get
into the weeds of it. So it's important to have Members like
Representative Heather Wilson and Peter Hoekstra, ranking member on the
House Select Committee on Intelligence, to help frame this issue for
us.
{time} 2015
But I think it's important to understand, as my neighbor, my
colleague and friend from Oregon, Representative Walden, just pointed
out, the bottom line, when you cut right to the chase, is that last
Thursday we left this place
[[Page H1023]]
and went home for our district work period during the Presidents Day
recess without addressing this issue and we took a break. Maybe some
Members were even out of the country. I know, Madam Speaker, I stayed
in my district the whole time hoping, literally hoping every day that I
would get that call to come back to Washington to fix this because, as
my colleagues have pointed out, this is just so important to let
something like this lapse.
I would like to have our colleague leading the hour, Representative
Wilson, maybe explain to the membership here so they can get a better
understanding of why we need to modernize this 30-year-old FISA,
Foreign Intelligence Surveillance Act, passed in 1978, why it is so
important to be able to bring it into the 21st century. And maybe she
could explain to our colleagues on both sides of the aisle the
importance of data mining, of being able to get the cooperation of
telecommunication companies, if she has not already done that, why it
is important to get that information and look at patterns of
communication so that we can understand what these terrorists and what
these foreign intelligence agents are doing, and why it's such a
tremendous threat to this country.
I yield back to my colleague. And I will remain here during this hour
and hopefully engage her in more colloquy, and with the gentleman from
Oregon, but I would like to hear some discussion on that.
Mrs. WILSON of New Mexico. The key change in the Protect America Act,
and also in the Senate bill that is now being blocked here on the floor
of the House, is to allow American intelligence to listen to foreigners
in foreign countries without a warrant, even if the point of access to
that communication is a wire here in the United States. That's really
the fundamental change. It has very strong privacy protections for
Americans. Americans, wherever they may be, whether you're off in
Germany on vacation with your family, you're an American, you have
protections and rights under our Constitution. Foreigners in foreign
countries do not have those rights under our Constitution, and we are
seeking to gather information on terrorist targets overseas.
So it's foreigners in foreign countries. And it just has to do with
touching a wire in the United States to gather that information. And it
says if the point of access happens to be a wire in the United States,
that doesn't matter. What matters is you reasonably believe they are a
foreigner in a foreign country.
I yield to my colleague from Oregon.
Mr. WALDEN of Oregon. I appreciate that because I think you've summed
it up quite well.
And once again, for our colleagues who have just joined us, this is
all about a 30-year-old law that needs to be updated, because in the
last 30 minutes technology has probably changed on us; but think about
what's happened in 30 years: There was no Internet available to the
public; there were no cell phones; there might have been a car radio
phone or something somebody had somewhere. But we're dealing with
highly trained, sophisticated terrorist organizations who show no
allegiance to any country or rules or conventions, who have proven
their will to use whatever force they can muster to attack innocent
civilians in America and elsewhere. And we're now covering the eyes and
ears of our intelligence professionals and reducing their ability to
try to prevent another attack.
One of the issues that has come up in this debate, of course, is the
participation of the private companies. And I would like to share some
information from, again, a letter from the United States Attorney
General and the National Intelligence Director where they take on this
issue. Because you have to remember that all this stuff is networked.
The government doesn't control every phone line and every Internet
connection and all of that. You have to have a partnership. And I know
after 9/11 the intelligence community and the President said, what do
we need to do to work together to make sure we don't get attacked
again? Are we going to get attacked again? You remember those days
right after 9/11, we had the anthrax attack again here at the Capitol
they never have solved. People lost their lives around America. We were
really concerned, and rightfully so, that we had missed the big one,
and it should never happen again. So they involved the
telecommunications companies, because you can't do it without them.
Now, the Senate looked at this issue. The Attorney General and the
head of National Intelligence wrote back to the chairman of the House
Select Committee on Intelligence and said: ``Private party assistance
is necessary and critical to ensuring that the intelligence community
can collect the information needed to protect our country from
attack.'' Pretty strong words.
In its report on S. 2248, that's the Senate bill, the Intelligence
Committee stated that, and this is from the Senate Select Committee on
Intelligence: ``The intelligence community cannot obtain the
intelligence it needs without assistance'' from electronic
communication service providers.
The committee also concluded that ``without retroactive immunity, the
private sector might be unwilling to cooperate with lawful government
requests in the future without unnecessary court involvement and
protracted litigation. The possible reduction in intelligence that
might result in this delay is simply unacceptable for the safety of our
Nation.'' That's not President Bush and his people saying that. That's
the Senate Select Committee on Intelligence, Permanent Select Committee
on Intelligence headed by J. Rockefeller, a Democrat from West
Virginia.
The letter goes on to say: ``Senior intelligence officials also have
testified regarding the importance of providing liability protection
for such companies for this very reason.''
Do you want to do everything in your power in this Congress to
safeguard America, not only here at home, but our allies overseas, and
probably our men and women whose lives are on the line in the
battlefields across the world? Because, you see, they're being
threatened by terrorists, too. It is those communications we're trying
to also find out where they plan the next car bomb attack. Where do
they plan to take down one of our men and women in uniform whom we hold
so high? What if their communication happens through the United States?
Do we have to spend 72 hours before a court and a judge, and maybe some
trial lawyers to boot, to figure out what we can listen in to and how
we can act on it?
Mrs. WILSON of New Mexico. If the gentleman will yield.
Mr. WALDEN of Oregon. I will be happy to yield.
Mrs. WILSON of New Mexico. It was actually a situation like that
which caused me to say enough is enough, we have to get this fixed. It
was last May, and at the time we couldn't talk about it, but it's been
talked about publicly since then.
We had soldiers who were kidnapped in Iraq. We had, we thought, a tip
on who might have done it. And there was an army of lawyers here in
Washington and over a 24-hour delay in listening to communications
because they had to touch a wire in the United States. I mean,
you think about it, it's your kid, it's your kid that's been kidnapped.
All of us are familiar here in America with the AMBER alerts. Speed
matters when someone's been kidnapped, and you want to get information
out as quickly as possible to try to save somebody. If it was your kid
who was in a combat zone who has been kidnapped by insurgents, and
we've got a room full of lawyers in Washington trying to get a warrant
to listen to the communications of the insurgents that took him? That's
not good enough. It's not good enough. And we should expect more of our
government than that. And the responsibility for fixing it rests right
here in this body.
We've got this odd situation with soldiers overseas in Afghanistan
and Iraq and the Philippines in dangerous situations where they've got
the authority to shoot an insurgent, but they can't listen to him
without a warrant. Where is the sense in that?
Mr. WALDEN of Oregon. You're kidding. Is that actually the case? So
they can shoot them, but they can't listen to their cell phone?
Mrs. WILSON of New Mexico. That's right.
I yield to my colleague from Pennsylvania.
Mr. DENT. I thank the gentlelady. And I thank you for your leadership
as
[[Page H1024]]
a member of the Permanent Select Committee on Intelligence. But to just
follow up on what you said, if there are two insurgents or two
terrorists in Iraq talking to each other by cell phones, what appears
to be a wireless communication, one to the other, it's likely that that
call will be routed through the United States, hit a wire, and then
that would pretty much trigger the Wire Act. And that's what caused the
intervention of all the lawyers.
So we're talking about the denial of tactical intelligence to our men
and women who are on the ground, soldiers on the ground and marines on
the ground not being able to pursue a hot tip or a hot bit of
information because of the inadequacy of current law.
Mrs. WILSON of New Mexico. And it's even worse than that. You've got
your two cell phones there. If the soldiers were able to intercept
between that insurgent's cell phone and the tower that it's going to,
that's all fine; you don't need a warrant for that. It's only if it
happens to route through the United States and you touch the wire where
it's actually easier to listen to it that you need a warrant. So it
depends on the point of collection. This is stupid.
I yield back to my colleague from Pennsylvania.
Mr. DENT. I've been following this dialogue very carefully, and I
commend you all for your leadership on this, but I want to say
something. You know, the American people, I think, they believe that
Washington is broken, and they get sick and tired of the mindless
partisan bickering. But as has been stated here already, we have a
strong bipartisan consensus, veto proof majority in the Senate. Senator
Rockefeller, and I won't read his quote just now, but we have people
who are prepared to vote for this.
In the House, we have 20 Members who signed the letter, 20 Democratic
Members who signed the letter saying they support this bill as it
passed the Senate, our friends and our colleagues. We stand ready to
work with them in a bipartisan manner to pass this bill.
You know, sometimes I think the Speaker of the House has to take
``yes'' for an answer. It's time to get the job done. The time for
debate is over. It's time to get the job done. And, again, our failure
to act on this legislation is tantamount to dereliction of duty. And I
think all of us have had enough. Let's get it done. The consensus has
been reached. It's time to move forward.
Dear Madam Speaker: Legislation reforming the Foreign
Intelligence Surveillance Act (FISA) is currently being
considered by the Senate. Following the Senate's passage of a
FISA bill, it will be necessary for the House to quickly
consider FISA legislation to get a bill to the President
before the Protect America Act expires in February.
It is our belief that such legislation should include the
following provisions: Require individualized warrants for
surveillance of U.S. citizens living or traveling abroad;
Clarify that no court order is required to conduct
surveillance of foreign-to-foreign communications that are
routed through the United States; Provide enhanced oversight
by Congress of surveillance laws and procedures; Compel
compliance by private sector partners; Review by FISA Court
of minimization procedures; Targeted immunity for carriers
that participated in anti-terrorism surveillance programs.
The Rockefeller-Bond FISA legislation contains satisfactory
language addressing all these issues and we would fully
support that measure should it reach the House floor without
substantial change. We believe these components will ensure a
strong national security apparatus that can thwart terrorism
across the globe and save American lives here in our country.
It is also critical that we update the FISA laws in a
timely manner. To pass a long-term extension of the Protect
America Act, as some may suggest, would leave in place a
limited, stopgap measure that does not fully address critical
surveillance issues. We have it within our ability to replace
the expiring Protect America Act by passing strong,
bipartisan FISA modernization legislation that can be signed
into law and we should do so--the consequences of not passing
such a measure could place our national security at undue
risk.
Sincerely,
Leonard L. Boswell, ------, Mike Ross, Bud Cramer, Heath
Shuler, Allen Boyd, Dan Boren, Jim Matheson, Lincoln
Davis, Tim Holden, Dennis Moore, Earl Pomeroy, Melissa
L. Bean, John Barrow, Joe Baca, John Tanner, Jim
Cooper, Zachary T. Space, Brad Ellsworth, Charlie
Melancon, Christopher P. Carney.
Mrs. WILSON of New Mexico. I yield to the gentleman from Georgia.
Mr. GINGREY. And I appreciate my colleague from Pennsylvania bringing
that out. In fact, I will use some of the quotes. And I think this is
important that my colleagues understand this, Madam Speaker, because
this was a decision that the Democratic leadership made, almost 9 days
ago now, to leave this place without reauthorizing and giving that
liability protection to the telecommunications industry that is so
important and that has made this program work ever since 9/11. This is
basically what the majority leader of this House said, and I quote from
Representative Steny Hoyer: ``I don't think anything is going to
erode.'' And that's basically what he said when he left here. But the
truth is, and my colleague from Pennsylvania alluded to comments made
by the chairman of the Senate Select Committee on Intelligence, J.
Rockefeller, the Democrat from West Virginia, and basically he said,
clearly, what people have to understand around here that the quality of
the intelligence that we are going to be receiving is going to be
degraded, it is going to be degraded, it is already going to be
degraded. And he said that on the Senate floor on Valentine's Day, 2/
14.
Here is what 21 Blue Dog House Democrats said when they wrote a
letter to Speaker Pelosi: ``We have it within our ability to replace
the expiring Protect America Act by passing strong, bipartisan FISA
modernization legislation that can be signed into law, and we should do
so.''
And then finally, as we have said here several times tonight, Madam
Speaker, Admiral Mike McConnell, the Director of National Intelligence,
after all, it was the Democratic majority that wanted a Director of
National Intelligence, it was the 9/11 families that wanted a Director
of National Intelligence. And here he says to us: ``Some have claimed
that expiration of the Protect America Act would not significantly
affect our operations. Such claims are not supported by the facts.
Without the act in place, vital programs would be plunged into
uncertainty and delay, and capabilities would continue to decline.''
I yield back to my colleague from New Mexico, but it's clear, it's so
clear.
Mrs. WILSON of New Mexico. I yield to my colleague from Oregon.
Mr. WALDEN of Oregon. I just want to pick up in the timeline where
you left off, because then Attorney General Mike Mukasey and the
Director of National Intelligence, Mike McConnell, the admiral you
referenced, head of our national intelligence wrote: ``Our experience
in the past few days, since the expiration of the act, demonstrates
that these concerns are neither speculative, nor theoretical. Allowing
the act to expire without passing the bipartisan Senate bill has had
real and negative consequences for our national security. Indeed, this
has led directly to a degraded intelligence capability.''
You know, if he testified to that before the 9/11 Commission or any
of these commissions that occurred after 9/11, this House and the
Senate would have said, my gosh, we've got to make sure we fix that
problem. But for some reason, here we are in 2008 and there are some in
the leadership who act like we'll just go about our merry way,
everything's fine, there won't be a problem. And hopefully there won't
be a problem. But, to me, when the Director of National Intelligence
says our intelligence capabilities are degraded, we are losing
intelligence-gathering abilities, we are at risk, et cetera, et cetera,
it is time to act.
February 22, 2008.
Hon. Silvestre Reyes,
Chairman, House Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
Dear Chairman Reyes: The President asked us to respond to
your letter of February 14, 2008, concerning the urgent need
to modernize the Foreign Intelligence Surveillance Act of
1978 (FISA). Your assertion that there is no harm in allowing
the temporary authorities provided by the Protect America Act
to expire without enacting the Senate's FISA reform bill is
inaccurate and based on a number of misunderstandings
concerning our intelligence capabilities. We address those
misunderstandings below. We hope that you find this letter
helpful and that you will reconsider your opposition to the
bill passed last week by a strong bipartisan majority in the
Senate and, when Congress returns from its recess, support
immediately bringing the Senate bill to the floor, where it
enjoys the support of a majority of your fellow members. It
is critical to our national security that Congress acts as
soon as possible to pass the Senate bill.
[[Page H1025]]
intelligence collection
Our experience since Congress allowed the Protect America
Act to expire without passing the bipartisan Senate bill
demonstrates why the Nation is now more vulnerable to
terrorist attack and other foreign threats. In our letter to
Senator Reid on February 5, 2008, we explained that: ``the
expiration of the authorities in the Protect America Act
would plunge critical intelligence programs into a state of
uncertainty which could cause us to delay the gathering of,
or simply miss, critical foreign intelligence information.''
That is exactly what has happened since the Protect America
Act expired six days ago without enactment of the bipartisan
Senate bill. We have lost intelligence information this past
week as a direct result of the uncertainty created by
Congress's failure to act. Because of this uncertainty, some
partners have reduced cooperation. In particular, they have
delayed or refused compliance with our requests to initiate
new surveillances of terrorist and other foreign intelligence
targets under existing directives issued pursuant to the
Protect America Act. Although most partners intend to
cooperate for the time being, they have expressed deep
misgivings about doing so in light of the uncertainty and
have indicated that they may well cease to cooperate if the
uncertainty persists. We are working to mitigate these
problems and are hopeful that our efforts will be successful.
Nevertheless, the broader uncertainty caused by the Act's
expiration will persist unless and until the bipartisan
Senate bill is passed. This uncertainty may well continue to
cause us to miss information that we otherwise would be
collecting.
Thus, although it is correct that we can continue to
conduct certain activities authorized by the Protect America
Act for a period of one year from the time they were first
authorized, the Act's expiration has and may well continue to
adversely affect such activities. Any adverse effects will
result in a weakening of critical tools necessary to protect
the Nation. As we explained in our letter to Senator Reid,
expiration would create uncertainty concerning:
The ability to modify certifications and procedures issued
under the Protect America Act to reflect operational needs
and the implementation of procedures to ensure that agencies
are fully integrated protecting the Nation; the continuing
validity of liability protection for those who assist us
according to the procedures under the Protect America Act;
the continuing validity of the judicial mechanism for
compelling the assistance of private parties needed to
protect our national security; the ability to cover
intelligence gaps created by new communication paths or
technologies.
Our experience in the past few days since the expiration of
the Act demonstrates that these concerns are neither
speculative nor theoretical: allowing the Act to expire
without passing the bipartisan Senate bill has had real and
negative consequences for our national security. Indeed, this
has led directly to a degraded intelligence capability.
It is imperative that our intelligence agencies retain the
tools they need to collect vital intelligence information. As
we have explained before, the core authorities provided by
the Protect America Act have helped us to obtain exactly the
type of information we need to keep America safe, and it is
essential that Congress reauthorize the Act's core
authorities while also extending liability protection to
those companies who assisted our Nation following the attacks
of September 11, 2001. Using the authorities provided in the
Protect America Act, we have obtained information about
efforts of an individual to become a suicide operative,
efforts by terrorists to obtain guns and ammunition, and
terrorists transferring money. Other information obtained
using the authorities provided by the Protect America Act has
led to the disruption of planned terrorist attacks. The
bipartisan Senate bill would preserve these core authorities
and improve on the Protect America Act in certain critical
ways, including by providing liability protection to
companies that assisted in defending the country after
September 11.
In your letter, you assert that the Intelligence
Community's ability to protect the Nation has not been
weakened, because the Intelligence Community continues to
have the ability to conduct surveillance abroad in accordance
with Executive Order 12333. We respectfully disagree.
Surveillance conducted under Executive Order 12333 in a
manner that does not implicate FISA or the Protect America
Act is not always as effective, efficient, or safe for our
intelligence professionals as acquisitions conducted under
the Protect America Act. And, in any event, surveillance
under the Protect America Act served as an essential adjunct
to our other intelligence tools. This is particularly true in
light of the changes since 1978 in the manner in which
communications are transmitted. As a result of these changes,
the Government often has been required to obtain a FISA Court
order prior to surveillance of foreign terrorists and other
national security threats located outside the United States.
This hampered our intelligence collection targeting these
individuals overseas in a way that Congress never intended,
and it is what led to the dangerous intelligence gaps last
summer. Congress addressed this issue temporarily by passing
the Protect America Act but long-term FISA reform is critical
to the national security.
We have provided Congress with examples in which
difficulties with collections under the Executive Order
resulted in the Intelligence Community missing crucial
information. For instance, one of the September 11th
hijackers communicated with a known overseas terrorist
facility while he was living in the United States. Because
that collection was conducted under Executive Order 12333,
the Intelligence Community could not identify the domestic
end of the communication prior to September 11, 2001, when it
could have stopped that attack. The failure to collect such
communications was one of the central criticisms of the
Congressional Joint Inquiry that looked into intelligence
failures associated with the attacks of September 11. The
bipartisan bill passed by the Senate would address such flaws
in our capabilities that existed before the enactment of the
Protect America Act and that are now resurfacing. We have
provided Congress with additional and detailed examples of
how the Protect America Act temporarily fixed this problem
and have demonstrated the operational need to provide a long-
term legislative foundation for these authorities by passing
the bipartisan Senate bill.
In your letter, you also posit that our intelligence
capabilities have not been weakened, because the Government
can employ the outdated provisions of FISA as they existed
before the Protect America Act. We respectfully disagree. It
was that very framework that created dangerous intelligence
gaps in the past and that led Congress to pass the Protect
America Act last summer.
As we have explained in letters, briefings and hearings,
FISA's requirements, unlike those of the Protect America Act
and the bipartisan Senate bill, impair our ability to collect
information on foreign intelligence targets located overseas.
Most importantly, FISA was designed to govern foreign
intelligence surveillance of persons in the United States and
therefore requires a showing of ``probable cause'' before
such surveillance can begin. This standard makes sense in the
context of targeting persons in the United States for
surveillance, where the Fourth Amendment itself often
requires probable cause and where the civil liberties of
Americans are most implicated. But it makes no sense to
require a showing of probable cause for surveillance of
overseas foreign targets who are not entitled to the Fourth
Amendment protections guaranteed by our Constitution. Put
simply, imposing this requirement in the context of
surveillance of foreign targets located overseas results in
the loss of potentially vital intelligence by, for example,
delaying intelligence collection and thereby losing some
intelligence forever. In addition, the requirement to make
such a showing requires us to divert our linguists and
analysts covering al-Qa'ida and other foreign threats from
their core role--protecting the Nation--to the task of
providing detailed facts for FISA Court applications related
to surveillance of such foreign targets. Our intelligence
professionals need to be able to obtain foreign intelligence
from foreign targets with speed and agility. If we revert to
a legal framework in which the Intelligence Community
needs to make probable cause showings for foreign
terrorists and other national security threats located
overseas, we are certain to experience more intelligence
gaps and miss collecting information.
You imply that the emergency authorization process under
FISA is an adequate substitute for the legislative
authorities that have lapsed. This assertion reflects a basic
misunderstanding about FISA's emergency authorization
provisions. Specifically, you assert that the National
Security Agency (NSA) or the Federal Bureau of Investigation
(FBI) ``may begin surveillance immediately'' in an emergency
situation. FISA requires far more, and it would be illegal to
proceed as you suggest. Before surveillance begins the
Attorney General must determine that there is probable cause
that the target of the surveillance is a foreign power or an
agent of a foreign power and that FISA's other requirements
are met. As explained above, the process of compiling the
facts necessary for such a determination and preparing
applications for emergency authorizations takes time and
results in delays. Again, it makes no sense to impose this
requirement in the context of foreign intelligence
surveillance of targets located overseas. Because of the
hurdles under FISA's emergency authorization provisions and
the requirement to go to the FISA Court within 72 hours, our
resource constraints limit our use of emergency
authorizations to certain high-priority circumstances and
cannot simply be employed for every foreign intelligence
target.
It is also inaccurate to state that because Congress has
amended FISA several times, there is no need to modernize
FISA. This statement runs counter to the very basis for
Congress's passage last August of the Protect America Act. It
was not until the passage of this Act that Congress amended
those provisions of FISA that had become outdated due to the
communications revolution we have experienced since 1978. As
we explained, those outdated provisions resulted in dangerous
intelligence gaps by causing constitutional protections to be
extended to foreign terrorists overseas. It is critical that
Congress enact long-term FISA modernization to ensure that
the Intelligence Community can collect effectively the
foreign intelligence information it needs to protect the
Nation. The bill passed by the Senate would achieve this
goal, while safeguarding the privacy interests of Americans.
liability protection
Your assertion that the failure to provide liability
protection for those private-sector
[[Page H1026]]
firms that helped defend the Nation after the September 11
attacks does not affect our intelligence collection
capability is inaccurate and contrary to the experience of
intelligence professionals and to the conclusions the Senate
Select Committee on Intelligence reached after careful study
of the matter. It also ignores that providing liability
protection to those companies sued for answering their
country's call for assistance in the aftermath of September
11 is simply the right thing to do. Through briefings and
documents, we have provided the members of your committee
with access to the information that shows that immunity is
the fair and just result.
Private party assistance is necessary and critical to
ensuring that the Intelligence Community can collect the
information needed to protect our country from attack. In its
report on S. 2248, the Intelligence Committee stated that
``the intelligence community cannot obtain the intelligence
it needs without assistance'' from electronic communication
service providers. The Committee also concluded that
``without retroactive immunity, the private sector might be
unwilling to cooperate with lawful Government requests in the
future without unnecessary court involvement and protracted
litigation. The possible reduction in intelligence that might
result from this delay is simply unacceptable for the safety
of our Nation.'' Senior intelligence officials also have
testified regarding the importance of providing liability
protection to such companies for this very reason.
Even prior to the expiration of the Protect America Act, we
experienced significant difficulties in working with the
private sector because of the continued failure to provide
liability protection for such companies. These difficulties
have only grown since expiration of the Act without passage
of the bipartisan Senate bill, which would provide fair and
just liability protection. Exposing the private sector to the
continued risk of billion-dollar class action suits for
assisting in efforts to defend the country understandably
makes the private sector much more reluctant to cooperate.
Without their cooperation, our efforts to protect the country
cannot succeed.
pending legislation
Finally, as you note, the House passed a bill in November
to amend FISA, but we immediately made clear that the bill is
unworkable and unacceptable. Over three months ago, the
Administration issued a Statement of Administration Policy
(SAP) that stated that the House bill ``falls far short of
providing the Intelligence Community with the tools it needs
to collect effectively the foreign intelligence information
vital for the security of the Nation'' and that ``the
Director of National Intelligence and the President's other
senior advisers would recommend that the President veto the
bill.'' We adhere to that view today.
The House bill has several grave deficiencies. First,
although numerous senior intelligence officials have
testified regarding the importance of affording liability
protection for companies that assisted the Government in the
aftermath of September 11, the House bill does not address
the critical issue of liability protection. Second, the House
bill contains certain provisions and serious technical flaws
that would fatally undermine our ability to collect
effectively the intelligence needed to protect the Nation. In
contrast, the Senate bill deals with the issue of liability
protection in a way that is fair and that protects the
national security. In addition, the Senate bill is carefully
drafted and has been amended to avoid technical flaws similar
to the ones in the House bill. We note that the privacy
protections for Americans in the Senate bill exceed the
protections contained in both the Protect America Act and the
House bill.
The Department of Justice and the Intelligence Community
are taking the steps we can to try to keep the country safe
during this current period of uncertainty. These measures are
remedial at best, however, and do not provide the tools our
intelligence professionals need to protect the Nation or the
certainty needed by our intelligence professionals and our
private partners. The Senate passed a strong and balanced
bill by an overwhelming and bipartisan margin. That bill
would modernize FISA, ensure the future cooperation of the
private sector, and guard the civil liberties we value. We
hope that you will support giving your fellow members the
chance to vote on this bill.
Sincerely,
J.M. McConnell,
Director of National Intelligence.
Mrs. WILSON of New Mexico. And one of the things that baffles me is
to be able to hear the Director of National Intelligence, Admiral
McConnell, say those things, to have very clear testimony both publicly
and privately that the problems they predicted are actually taking
place, and yet the Democratic leadership in the House is still in a
state of denial, just hoping that we don't miss something important.
Now, you kind of wonder, why on Earth are they willing to take this
risk? Why are they willing to put the rest of us at risk? And I have
difficulty understanding that. And I listened to some of my colleagues
on the floor of the House here in the debate last week when one of my
Democratic colleagues actually said that he thought that listening to
foreigners in foreign countries without a warrant was suspicious and
disrespectful.
Mr. WALDEN of Oregon. He said what?
Mrs. WILSON of New Mexico. He said it was suspicious and
disrespectful to listen to foreigners in foreign countries without a
warrant.
{time} 2030
And I couldn't believe he said it. I just couldn't believe it. As if
this is about America being polite to terrorists.
Mr. GINGREY. If the gentlewoman would yield, I would say the ultimate
disrespect was 9/11.
Mrs. WILSON of New Mexico. I yield to my colleague from Pennsylvania.
Mr. DENT. Thank you. I'd like to try to answer the question you just
raised. Why wouldn't we pass this bill, given the comments by Senator
Rockefeller, who said on three separate occasions, as the gentleman
from Georgia pointed out, that our intelligence capacities had been
degraded? And the Director of Intelligence, Director McConnell, he has
made similar statements. So the question is why aren't we dealing with
this.
I think the answer is this: that there are people in this body who
are prepared to put the special interests ahead of the national
interests. And it's quite clear they are protecting the interests of
the most litigious members of our society at the expense of the
security of the American people. And that is wrong.
And, again, I believe many of us standing here, I know I have tried
to work in a bipartisan manner on a number of issues in this Congress.
I have reached out on a number of issues from SCHIP to stem cell
research to others. We're doing it again today on intelligence, and we
are being brushed aside, and I think it's simply disgraceful.
And I also want to read a comment, if I may. The Veterans of Foreign
Wars has weighed in on this issue, and their commander, Commander
George Lisicki said, ``Americans are protected from illegal search and
seizures by the fourth amendment, but critical legislation is now being
delayed because some would extend these same constitutional protections
to those who want to harm America, people who kill without conscience,
who represent no country, and who have no agenda other than the total
destruction of our country.'' That's not me. That's from the VFW.
It's been pointed out that Senator Rockefeller, the Democratic Chair
of the Senate Intelligence Committee, has said that our intelligence
capacities are being degraded. The Attorney General and National
Intelligence Director McConnell have said, and I quote, that that is
exactly what has happened since the Protect America Act expired 6 days
ago without enactment of the bipartisan Senate bill. ``We have lost
intelligence information this past week as a direct result of the
uncertainty created by Congress's failure to act. Because of this
uncertainty, some partners have reduced cooperation. In particular,
they have delayed or refused compliance with our requests to initiate
new surveillance of terrorists and other foreign intelligence targets
under existing directives issued pursuant to the Protect America Act.''
What they are saying is that those people who were partnering with
us, helping us to protect America, are now afraid to do so out of fear
of lawsuit. They'll have to be compelled to cooperate. And that's
really the tragedy here, in addition to saving American lives.
Mrs. WILSON of New Mexico. One of the things that I think we need to
dispel is a couple of myths, and they are myths being promulgated by
the Democratic leadership that is blocking the will of the majority in
this House from passing this legislation. And one of them is that, oh,
well, we can start emergency surveillance, emergency wiretaps in a
matter of minutes. It's really just not that big a deal, when, in fact,
that's not true.
The requirement under the existing law is that the Attorney General
can start a wiretap without going to the court in an emergency, but he
has to stand in the shoes of the court. He has to certify that all the
elements of probable cause to get a warrant are already
[[Page H1027]]
there. So all of the material that would be presented to the court has
to be completely worked up. And we found in the real world when it
really mattered, we had three soldiers that were kidnapped in Iraq, it
took over 24 hours to gather the information, build the case for
probable cause. And some of my colleagues said, well, you know, you
should have just gone ahead and done it and we would have just taken
care of it after the fact. We had testimony in front of the
Intelligence Committee where the chairman actually said that. And I
looked at the young man who was there who was a member of the
intelligence community, and I said, Is it true that initiating a
wiretap without authority is a felony?
And he said, Yes, ma'am, it is.
I said, Would you be willing to risk a felony, hoping that this body
would somehow cut you some slack or the prosecutor wouldn't go after
you?
And he said, I'm an officer of the court. I'm a lawyer. I can't
knowingly commit a felony. I can't do that.
Mr. DENT. Madam Speaker, will the gentlewoman yield?
Mrs. WILSON of New Mexico. I yield to my colleague from Pennsylvania.
Mr. DENT. Along those very same lines about protecting our
intelligence agents and our counterterrorism officials, it's my
understanding that because of this legalistic approach to intelligence
gathering, this approach to national security, that has forced
intelligence officers to take out liability insurance for fear of
investigations or prosecutions for taking the kinds of liberties that
someone suggested they take but knowing they are committing a felony.
Is that your understanding too, that these intelligence officials are
actually having to take out liability insurance to protect themselves
not from al Qaeda, not from the enemy, but from prosecution or
congressional inquiry?
Mrs. WILSON of New Mexico. The sad thing in this city is that we have
people taking tremendous risks on our behalf under complete orders to
do so, that we're certified, we're lawful and everything else, and they
are so afraid of the kind of after-the-fact inquiries that this body
can levy on them that they have taken out liability insurance so that
they are not bankrupted by the actions of this Congress.
I yield to my colleague from Oregon.
Mr. WALDEN of Oregon. You raised an interesting point about this sort
of smoke-and-mirrors argument of how quickly the FISA Court can act on
a surveillance order. The Speaker of the House, Ms. Pelosi, was quoted
as saying in a statement on FISA negotiations on February 22, ``The
FISA Court can approve surveillance orders quickly.'' But I think what
I learned tonight from you is that while that may be the case, they
don't get that request until somebody's built up the whole probable
cause work; right?
Mrs. WILSON of New Mexico. If my colleague would think about that for
a second, you've got a tip. Most people know that a lot of big cities
have gang units. Put this in this context. You got a tip that somebody
may be a terrorist overseas, but really all you have is maybe a name
and maybe a phone number. That's not enough to get probable cause for a
warrant. So you've got to be able to amass why is it that you think
this is the person. What relationships do they have? You have to build
up this whole case. And unlike something in America where it would be
the gang unit in the Albuquerque Police Department or the Washington
Police Department, we're talking about people in foreign countries.
It's not as though you can send the FBI out to talk to their neighbors
to build a case for probable cause to get a warrant to believe that
this person is affiliated with a terrorist organization. So in many
cases you cannot even reach that standard to get a wiretap in an
emergency situation because the probable cause standard was set up to
protect Americans who have rights under our Constitution with respect
to law enforcement investigations. This is applying a whole body of law
to something it was never really intended to be applied to.
Mr. GINGREY. Madam Speaker, will the gentlewoman yield?
Mrs. WILSON of New Mexico. I yield to my colleague from Georgia.
Mr. GINGREY. I appreciate so much the gentlewoman's yielding.
Madam Speaker, I think one of the most important aspects of this
hour, and I know we are running short on time and I want to yield back
to the gentlewoman from New Mexico, but one of the most important
things for people to understand, Members of this body on both sides of
the aisle, is the telecommunications companies voluntarily but yet
under the law, under the PATRIOT Act, were required to provide
information of their records, their phone records, under the threat of
criminal and civil penalties from our own Justice Department. So that's
why it's so important that they have retroactive immunity in regard to
this issue. And these records are so important, and I will quickly say
this, what people are doing today that's part of the modernization,
they are not using hard lines. My colleague from Pennsylvania held up
those two cell phones. They're buying these throw-away $49.95 cell
phones and burn cards, and the only way you can develop a pattern is if
our intelligence experts have access to the records of the
telecommunications companies so they can look at it and develop a
pattern. So that's why that's so important.
Mrs. WILSON of New Mexico. I yield to my colleague from Oregon.
Mr. WALDEN of Oregon. I think, though, it's important for us, too, to
talk about the safeguards for American citizens on American soil
because I hear that when I go home: Are they listening in when I call
my aunt or somebody across the street? This warrantless wire
eavesdropping. Can you speak to that, about the protections that are
still there and, in fact, strengthened under the Senate version?
Mrs. WILSON of New Mexico. In fact, the Senate bill for privacy
protections for Americans are stronger than the Protect America Act and
stronger than current law under the Foreign Intelligence Surveillance
Act because the Foreign Intelligence Surveillance Act really focused on
technology. It was technology specific and assumed that things that
were on a wire were local calls in the United States. Well, we have
said that's changed. The bill that we want to bring up and pass in the
House has very strict protections for Americans wherever they are and
for anyone reasonably believed to be in the United States.
Now, there are some folks who think if somebody's not a citizen or if
they are here in the country illegally, you should be able to listen to
them. This bill doesn't even authorize that. It has very strict
protections for Americans in the United States or for Americans
wherever they happen to be.
Now, we collect intelligence. We spy overseas. When I was an officer
stationed overseas, one of my jobs at one post was to negotiate with
the Soviets back when the Soviets existed. We knew who the KGB guy was
in their delegation. If we happened to intercept his report back to
Moscow and it mentioned me, there were already procedures in place to
mask or so-called minimize the existence of an American that we may
have picked up intelligence overseas. This law actually strengthens
that. The bipartisan bill that we'd like to see passed here strengthens
it even further so that if I am an American businessperson living in
Germany, they'd have to actually get a warrant to listen to me in
Germany, which is a stronger protection than we have ever had before.
I yield to my colleague from Pennsylvania.
Mr. DENT. I thank the gentlewoman from New Mexico for yielding.
And to follow up on your very valid point about how this law does
provide protection for American citizens, in the letter that was signed
by about 20 of our Democratic House colleagues in support of the
Protect America Act, and the legislation that we'd all like to have
considered, they have said that this legislation should include the
following provisions:
First, require individualized warrants for surveillance of U.S.
citizens living or traveling abroad. So there is protection in there
for American citizens who are living or traveling abroad.
It clarifies that no court order is required to conduct surveillance
of foreign-to-foreign communications that are routed through the United
States.
It provides enhanced oversight by Congress of surveillance laws and
procedures; compels compliance by private-sector partners; review by
the FISA Court of minimization procedures
[[Page H1028]]
that I believe you have just alluded to; and targeted immunity for
carriers that participated in antiterrorist surveillance programs.
So I think that there are plenty of protections in place stronger
than current law. And I think there is one other issue that needs to be
addressed here and now, immediately. Some have suggested, that I think
they have irresponsibly suggested, that the PAA's, Protect America
Act's, existing certifications will cover all potentially needed
surveillance, and I think it's quite clear that in the event that it
expired, which it has, it's unclear whether a court would find any
directives under the PAA enforceable once the act expires. And it's my
understanding too, if a previously unknown group were to attack or
kidnap American soldiers after the act expires, it would not be covered
under the certifications of the Protect America Act. And I think we
should talk about that.
And there is another thing that I think we have to be concerned about
too is that I guess within 48 hours after the act expired, around
February 14, there were at least a few incidents that occurred around
the world where we have seen threats from radical jihadists or radical
extremists. In Denmark 2 days after February 14, we saw three jihadists
that were arrested in a plot to murder a cartoonist for drawing an
editorial cartoon years ago that they found objectionable. We've all
heard about that case. In the Philippines it's my understanding that
there were two jihadists associated with al Qaeda who were said to be
plotting the assassination of the Filipino President and bombing
western embassies. And, of course, there were repeated threats against
Israel that we have all heard about, including one from Mr. Nasralla,
the chief of Hezbollah, who raised a prospect of a war with Israel. He
even said, ``Zionists, if you want this kind of open war, let the whole
world listen. Let this war be open.'' And this was all said within 48
hours after the expiration, I believe, of the act.
Mrs. WILSON of New Mexico. Madam Speaker, we have been joined by my
colleague from Texas, who is one of the few Members of this House who
has direct experience in working with the Foreign Intelligence
Surveillance Act when he worked for the Justice Department.
I would be happy to yield to him.
Mr. McCAUL of Texas. I thank the gentlewoman from New Mexico for your
great leadership on this very important issue and for having this
debate tonight.
I think we are denying democracy its voice by not allowing the
Members who represent the American people the opportunity to vote on
the Protect America Act and to make that act permanent.
As the gentlewoman mentioned, I do have experience in the Justice
Department in this area. I applied for FISA warrants while I was there.
This statute was never intended to apply to overseas intelligence. It
was solely intended to apply to agents of a foreign power who were in
the United States.
This is a very dangerous game, and it's probably the most important
debate that I've seen since I have been elected to the Congress. By
allowing the Protect America Act to expire, by walking away from this
Chamber 10 days ago and doing nothing about that, we see what the
consequences are. We have heard the letters from the Director of
Intelligence, from the Attorney General, and the failure now to be able
to capture critical intelligence overseas.
{time} 2045
In fact, some estimates are as high as 66 percent. In other words, we
are going dark now in parts of the world where we should be paying
attention. This is a dangerous game of politics; in my view it is
partisan politics at its worst.
We are literally putting Americans at risk. The most solemn
obligation we have as Members of Congress is to protect the American
people. And there is a reason why since September 11 we haven't seen a
September 11.
Intelligence is the best weapon we have, as the gentlewoman has
mentioned, in this war on terror. And the idea that somehow when
American soldiers are kidnapped in Iraq overseas by al Qaeda and yet we
are denied the opportunity to listen in because we have to get lawyered
up, and we have to go through the FISA Court to get that emergency
warrant, and in the meantime one soldier is killed and two we have not
heard from since, really saddens my heart as an American. And I
believe, as the gentleman from Pennsylvania said, we are derelict in
our responsibilities.
I want to share with the gentlewoman an editorial, an op-ed that I
wrote with Admiral Bobby Inman. Why is Admiral Inman important? He was
the Director of National Intelligence, the Deputy Director of the CIA
under both Democrat and Republican administrations. Admiral Inman was
one of the principal authors of the FISA statute. And in this editorial
he says, to apply FISA to monitoring foreign communications, a
suspected terrorist operating overseas such as Osama bin Laden and
other key al Qaeda leaders, turns the original intent of FISA on its
head. Turns the original intent of FISA on its head.
That is what a few key leaders on the other side of the aisle have
done. By not allowing us to vote, they know that it would pass. It
passed overwhelmingly in the Senate in a bipartisan way. And he goes on
to say, contrary to some of the rhetoric coming from the Democrats, it
is the members of al Qaeda, not American citizens, who are the target
of these intelligence-gathering activities.
I submit the question, don't you think that most Americans want us to
be listening to what al Qaeda is saying overseas? Don't you think most
Americans want to hear the conversations that we know they are having,
because this is a long-term struggle, and we know that they are
planning to attack us again? Don't the American people want us to be
listening to that? And yet by failing to make this Protect America Act
permanent, we are denying that opportunity.
If I can just by saying that if, God forbid, something happens
between now and the time we can finally get this body together to pass
this act, and American blood is spilled, that blood will be on the
hands of all Members of Congress. We need to get this act passed.
Mrs. WILSON of New Mexico. I yield to my colleague from Pennsylvania.
Mr. DENT. The gentleman from Texas made a very eloquent point. It is
well stated. His op-ed is worth reading. I would recommend anybody to
read this. It states all the points.
But to follow up, we did have an incident in this country where there
were two suspected terrorists in the United States, and in August of
2001, I believe this was written about in the 9/11 Commission Report,
there were two suspected terrorists, and I know there was an individual
whose name I can't recall at the moment, but I believe he was in the
counterterrorism division of the FBI who was very concerned about two
individuals who he thought were in this country, and he wanted a
nationwide manhunt.
And he had written a memo in August of 2001 saying, some day someone
is going to care about this, that all the protections are being
provided to al Qaeda and bin Laden at the expense of the security of
the American people. Those two people he was concerned about were the
two who crashed the plane into the Pentagon on September 11. I believe
it was sometime in the afternoon of September 11 he received his
request to go engage in that nationwide manhunt for those two
individuals. So this is a very real issue.
And I think we should try to conclude this program in the way it
began, in talking about the need for bipartisanship, particularly when
it comes to national security issues. And it can't be stated enough
that our friends on the other side of the aisle in the Senate and many
in this House are waiting to vote for this bill. We just want to have
the opportunity. As I said earlier, I think it is almost tantamount to
a dereliction of duty that the Speaker has not allowed a vote on this
issue.
Sometimes, we have to take ``yes'' for an answer. We have the
solution. It is in our reach. It is time to get the job done. And maybe
if we do that, the American people will look more favorably upon
Congress.
Mrs. WILSON of New Mexico. We are very close to the time being up in
the hour that we have had this evening. But I think it is important to
summarize some of the things we have talked about here tonight.
[[Page H1029]]
The Foreign Intelligence Surveillance Act was intended to protect the
civil liberties of Americans while also allowing our intelligence
agencies to collect the intelligence information that can protect us.
That is all it was intended to do. But it has become outdated because
of changes in technology.
We have a bill that has been passed in the Senate by 68 votes. There
has been a letter from 20 Democrats to their own leadership saying,
please, take up this bill because we want to vote for it. We all know
here that if we were allowed to vote on this bill, it would pass
overwhelmingly in the House, and the President has already said that he
would sign it. Instead, we are here tonight, 10 days after a law
expired, that our Director of National Intelligence, Admiral Mike
McConnell, has said has already degraded our ability to gather
intelligence on the people who are trying to kill Americans. I think
that is inexcusable.
I think we made a decision as a country on the morning of 9/11. We
made a decision that we were going to go on offense. We were going to
play away games because the home games cost too much.
I want the leaders of al Qaeda hiding in a hole in the mountains
between Pakistan and Afghanistan wondering whether they can use their
cell phones without being detected by American Special Forces, rather
than Americans using their cell phones to call home one last time. That
is the difference.
As my colleagues from Texas and Pennsylvania said, God forbid, God
forbid that we have to have another 9/11 Commission, that we have
another terrorist attack. I believe that the greatest accomplishment of
the last 6 years has been what has not happened. There has not been
another terrorist attack on our soil, and they have tried. Our first
line of defense in preventing another terrorist attack is good
intelligence. And because this law expired 10 days ago, we are tying
the hands of the intelligence agencies who are sworn to protect us. We
are making it harder for them. We are making them jump through hoops
that in some cases are too high and taking tremendous risks for the
American people. Why? Because a minority of Democrats, including their
leadership, refuse to allow a bipartisan bill to be brought up on the
floor of this House. Shame on them. Shame on them for not putting the
security of this country first.
If we have that other commission after another terrorist attack, they
are going to be saying, why didn't you protect us? What you are seeing
tonight is why. You can't connect the dots unless you can collect the
dots in the first place. This is about allowing our intelligence
agencies to collect the dots that can protect us.
I would urge the Democratic leadership, as my colleague from
Pennsylvania said, to take ``yes'' for an answer, to fix this problem,
to close this gap this week. We have nine suspensions on the floor. We
are naming post offices tomorrow. Pull it up tomorrow. And I will stand
here shoulder to shoulder with them on the floor of this House, we will
overwhelmingly pass it, and we can walk down to the White House
tomorrow afternoon so that the President can sign it and protect this
country.
I yield the balance of our time.
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