[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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