[Congressional Record Volume 154, Number 49 (Monday, March 31, 2008)]
[House]
[Pages H1797-H1805]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 18, 2007, the gentleman from Texas (Mr. McCaul) is recognized 
for 60 minutes as the designee of the minority leader.
  Mr. McCAUL of Texas. Forty-five days ago, the Protect America Act 
expired. Forty-five days ago, we began to lose critical intelligence 
overseas that could help better protect this Nation. Forty-five days 
ago, al Qaeda began to have the upper hand in this war on terror. 
Forty-five days ago, we started to

[[Page H1798]]

go dark in parts of the world. Why? Because the Democratic leadership 
will not allow this body to vote to make the Protect America Act 
permanent, as the Senate did many months ago.
  Mr. Speaker, this is a dangerous and reckless partisan play with the 
safety of the American people. It endangers the American people, both 
here at home and the warfighter abroad. We took an oath of office when 
we were sworn in to protect and defend the Constitution against all 
enemies, foreign and domestic. These are the foreign enemies. We are 
talking about foreign terrorists in a foreign country communicating 
foreign communications. This has nothing to do with the United States 
citizens. And yet, what the Democrats are allowing is to extend 
constitutional protections to people like Osama bin Laden and Khalil 
Sheikh Mohammad, al Qaeda leaders who are communicating about how they 
can perpetrate an act of evil like on September 11th.
  Mr. Speaker, there is a reason why this has not occurred since 9/11. 
It is because we have had good intelligence. Good intelligence is the 
best weapon we have in this war on terror. Without good intelligence, 
we cannot protect this Nation. And this is what this debate is all 
about. We all remember where we were on this day. But many of us don't 
remember where we were when the London arrests were made to stop 
airplanes from being blown up over the United States. Many of us don't 
remember the countless acts of heroism our intelligence community has 
performed in protecting the American people from plots against the 
United States.
  I, myself, when I worked at the Justice Department, worked on Foreign 
Intelligence Surveillance Act warrants. They had to do with agents of 
informed power in the United States. Through the use of good 
intelligence overseas, without having to go through the FISA Court, we 
were able to stop a terrorist plot to blow up 10 American cities on the 
4th of July. The voice that was intercepted said, ``Roast the Americans 
on Independence Day.''
  Mr. Speaker, this is real. This is a real-life threat to the American 
people. You don't have to take my word for it. I want to read for you a 
letter that was sent to the chairman of the Intelligence Committee, Mr. 
Reyes, from the Attorney General and the Director of National 
Intelligence about the expiration of the Protect America Act. What he 
says, he says, ``Our experience since Congress allowed the Protect 
America Act to expire without passing a bipartisan Senate bill,'' the 
bipartisan bill that was passed overwhelmingly in the Senate, that 
Senator Rockefeller supported, he says, ``demonstrates why the Nation 
is now more vulnerable to a terrorist attack and other foreign 
threats.''
  He explained that both the Attorney General and the Director of 
National Intelligence say in this letter to Chairman Reyes that the 
expiration of the authorities in the Protect America Act would plunge, 
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, and then underlined and 
highlighted in this letter, they warn the chairman, the Democratic 
chairman of the Intelligence Committee, 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, by Congress's failure to act.
  What is the response from the Democrat leadership here in the House 
in response to a letter that says that we have failed to act in the 
Congress, a dereliction of duty, in my view, by Members of the House. 
Steny Hoyer, the majority leader says, there really is no urgency. 
Let's all just calm down. Intelligence agencies have all the tools they 
need. Really? When the Director of National Intelligence says just the 
opposite.
  Chairman Silvestre Reyes says, you know, things will be just fine. 
Things will be just fine. Tell the American people that if we get hit 
again. Tell the three American soldiers who were kidnapped by 
insurgents in Iraq, and because we had to get ``lawyered up'' and go 
through a court in the United States because the time expired, one of 
those soldiers was killed and two we have not heard from since. You 
tell the families that there is no urgency and that things will be just 
fine.
  Winning this war on terror, as the 9/11 Commission said, has 
everything to do with connecting the dots. But if we are not allowed to 
collect the dots, there is no way we can connect the dots. That is what 
this debate is all about. It's about being able to capture overseas 
foreign intelligence by terrorists, by people who wish to do us harm, 
who every day are hoping that this will happen again.
  With that, I would like to yield to the gentlelady from New Mexico, 
who has really led the fight in the House on this issue, Congresswoman 
Heather Wilson from New Mexico. I would also be interested in your 
account of when this intelligence gap, if you will, this terrorist 
loophole first came to your attention.
  With that, I yield.
  Mrs. WILSON of New Mexico. I thank my colleague from Texas for 
yielding the time. It was actually a year ago in May when I became 
absolutely determined to get this fixed, and it was a result of a 
series of cases in what I saw as a growing problem in intelligence 
collection.
  But so that people understand, in 1978 the Congress passed a law that 
governed intelligence collection here in the United States, and it was 
in response to a bunch of abuses that happened in the 1950s and the 
1960s. Someone gave me a copy of a declassified memorandum signed by 
Robert Kennedy and J. Edgar Hoover authorizing the wiretapping of 
Martin Luther King. Intelligence agencies were involved in abuses and 
violating the civil liberties of Americans in the 1950s and 1960s, and 
this law in 1978 set up a special court called the Foreign Intelligence 
Surveillance Court. They meet in secret session. But in order to listen 
and to do a wiretap for the collection of foreign intelligence in the 
United States, you need to get a warrant from this court.

  The problem is that the law was written specific to the technology of 
the time. 1978 was the year that I graduated from high school. The 
telephone was connected to the wall in the kitchen. The Internet did 
not exist. Cell phones were Buck Rogers stuff. At that time, almost all 
international calls went over the air. They bounced off satellites. And 
the law does not require a warrant to collect any of that information. 
Almost all local calls were on a wire. And the focus was if you touched 
a wire, you needed a warrant because that was presumed to be a local 
call.
  Now, technology has completely changed. There are over 220 million 
cell phones in the United States. And now, almost all international 
calls go over a wire or a fiberoptic cable, not bounced off of 
satellites. So all of the foreign intelligence collection, foreign 
intelligence information which we used to collect over the air, without 
requiring any warrants at all, has migrated to wires; even more than 
that, because of global telecommunications.
  Telecommunications flow on the path of least resistance. So somebody 
making a phone call from the Horn of Africa into Pakistan, let's say, 
that call has a significant probability of actually being routed 
through the United States. Even a call from northern Spain to southern 
Spain may actually end up getting routed through the United States.
  Early last year, there was a series of court decisions that found 
that even if we are intending to listen to a foreigner in a foreign 
country, if the point of access required touching a wire in the United 
States, then you needed a warrant. This threw a complete monkey wrench 
into intelligence collection. By the summer of last year, the Director 
of National Intelligence has testified in open session that we had lost 
two-thirds of our intelligence collection on terrorism.
  The problem was becoming critical, and as a result, we passed 
something called the Protect America Act in the first week of August 
that said very clearly if you were in the United States, you needed to 
get a warrant. If your target was outside of the United States, then 
you did not need to get a warrant. It went back to the original 
intention of the Foreign Intelligence Surveillance Act of 1978.
  We worked through the backlog in the 6 months that that temporary act

[[Page H1799]]

was in place. Unfortunately, that act was allowed to expire on the 16th 
of February, and now we have gone back to the old system for all new 
tips and tips that are coming into the intelligence agencies. Anything 
that was already under a warrant, was covered for a year. But 
intelligence is a dynamic thing. There are new tips that come in every 
day. It's a little bit like law enforcement. You're going after the bad 
guys every day. There are things that happen and you get new tips and 
new leads, and all of those new leads have to be dealt with under an 
old and cumbersome system that does not allow America to keep pace with 
the terrorists we are trying to track.
  The key here is to prevent another terrorism attack, and our 
strongest and most important tool in the war against terrorism is good 
intelligence. If we can figure out what they are doing, we can stop 
them. The key is to figure out what they are doing, and that means good 
and timely intelligence.
  I yield back to my colleague.
  Mr. McCAUL of Texas. If I can ask the gentlelady that serves on the 
Intelligence Committee, we are talking, are we not, about foreign 
communications by a foreign target in a foreign country, but just 
because of the new technology, that it may touch a wire in the United 
States, it requires us to get attorneys to go before the FISA court to 
get a warrant. Is that correct?
  Mrs. WILSON of New Mexico. That is correct. Under the law that we are 
trying to get passed, that passed the Senate by a bipartisan vote with 
68 votes, it would not be required to get a warrant to listen to a 
foreigner in a foreign country. Unfortunately, the leadership here in 
the House will not allow that bill to come up for a vote.
  Twenty-one Democrats, over 20 State Attorney Generals have asked the 
leadership of this House to allow that bill to be brought up for a 
vote.

                              {time}  2015

  I think it would pass with an overwhelming, bipartisan majority.
  So we have the liberal Democratic leadership thwarting the majority 
of this House and compromising the safety and security of this country, 
and I believe they are doing it largely at the behest of trial lawyers 
who are eager to sue telephone companies, who can't defend themselves 
in civil court without compromising the way we collect intelligence.
  Mr. McCAUL of Texas. I thank the gentlewoman. So the threat is not 
only to the safety of American lives, in my view it is a threat to 
democracy. If this bill was allowed to come to the floor, it would pass 
overwhelmingly, as it did in the Senate.
  Briefly before I yield, the gentlewoman talked a lot about the 
Foreign Intelligence Surveillance Act. I practiced law under that.
  Admiral Inman, who is a supporter of mine, a friend in Austin, Texas, 
was the Deputy Director of the CIA, Director of the NSA. He was one of 
the principal authors of the FISA statute. When we talked about the 
application of this, having to apply the FISA overseas to foreign 
terrorists, that we are extending constitutional protections to 
terrorists in foreign countries, what he said, and he wrote an op-ed 
with me, he said, ``To apply FISA to monitoring foreign communications 
of suspected terrorists operating overseas, such as Osama bin Laden and 
other key al Qaeda leaders, turns the original intent of the FISA 
statute on its head. 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.''
  As the gentlewoman mentioned, in my view the driving force behind 
this dereliction of duty, this stopping democracy, is driven by a 
narrow special interest, and that is the ACLU and the trial lawyers 
pushing their agenda in a dangerous way that will put the American 
people at grave risk.
  With that, I would like to yield to my good friend, the gentleman 
from Pennsylvania (Mr. Dent).
  Mr. DENT. I would like to thank the gentleman from Texas and the 
gentlewoman from New Mexico for their strong leadership and advocacy on 
this critical national security issue. I think the colloquy engaged in 
really does represent the essence of the issue.
  Former Director Bobby Inman was just quoted saying that it seems that 
there is greater concern around this Congress by a minority, frankly, 
to grant constitutional protections to foreign terrorists, really at 
the expense of protecting Americans.
  I think we all know that is wrong. I think the colloquy you both just 
engaged in, and I heard the frustration expressed in your voice, I 
think that is also the frustration we are hearing from the American 
people. The American people do believe that Washington is broken, and I 
have said this many times. They are angry because Congress is not 
getting things done on their behalf, and this issue is just proof 
positive of this terrible failure.
  It has been pointed out that we have a bipartisan agreement in the 
Senate, 68 votes. We have more than a majority in this House to pass 
this critical legislation, the Protect America Act. It will pass, if 
only the Speaker will allow this legislation to come up for a vote. 
They simply want us to put the national interests ahead of the special 
interests.
  As you pointed out, the most litigious among us in this society are 
driving this issue and preventing the protection of the American 
people. I think it is just wrong, and we all know it is wrong. The 
bipartisan solution on FISA has been reached. There really are no more 
excuses. It is time for this leadership of the House to take ``yes'' 
for an answer. It is time to get the job done.
  It has been 45 days, 45 days, since the Protect America Act has 
expired. Senator Rockefeller, the Chair of the Intelligence Committee 
in the Senate, the Democrat from West Virginia, has made a plea, and I 
am going to quote him. He said, ``What people have to understand around 
here is that the quality of the intelligence we are going to be 
receiving is going to be degraded. It is going to be degraded. It is 
already going to be degraded as telecommunication companies lose 
interest.'' That was Senator Rockefeller, not me.
  The gentleman from Texas pointed out earlier too the letter that was 
sent to the chairman of the House Intelligence Committee, Silvestre 
Reyes, from the Director of National Intelligence, Mr. McConnell, and 
Attorney General Mukasey, essentially saying something very, very 
similar. I will read a quote from them in that letter of February 27, 
2008. I will be happy to submit that letter for the Record here this 
evening.
  But I am going to quote what they said about the degradation of our 
intelligence capabilities, pretty much agreeing with what Senator 
Rockefeller said, a Democrat. What they said is, ``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' failure to act.'' That was 6 days after the act. 
It is 45 days today.
  They go on to say, ``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 
terrorists and other foreign intelligence targets under existing 
directives issued pursuant to the Protect America Act.''
  Mr. Speaker, I include the letter for the Record.

                                                February 22, 2008.
     Hon. Silvestre Reyes,
     Chairman, House Permanent Select Committee on Intelligence, 
         House of Representatives, Washington, DC.
       Deaer 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.
     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

[[Page H1800]]

     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' 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 Untied 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 Untied 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 sine 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 firms that helped defend 
     the Nation after the September 11 attacks does not affect our 
     intelligence collection capability is inaccurate

[[Page H1801]]

     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 thei 
     nformation 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 recution 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 Protest America Act, we 
     expereinced significant difficulties in working with the 
     private sector because of the continued failure to provide 
     liability protection for such companies. These difficultures 
     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 suites 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 unaceptable. 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 effecively the foreign intelligence information 
     vital for the security of the Nation'' and that ``the 
     Director of National Intelligence and the President's other 
     senior advises 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 improtance 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 certains 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 toa void 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,
     Michael B. Mukasey,
       Attorney General.
     J.M. McConnell,
       Director of National Intelligence.

  Mr. DENT. I think that really says it all. Everybody agrees, both 
Republican and Democrat alike agree that the intelligence product is 
being degraded. This really isn't a partisan issue. It should not even 
be an ideological issue. This is simply an issue of common sense, doing 
what is right for the American people, putting their interests ahead of 
the special interests.
  With that, I would be happy to yield back to the gentleman from 
Texas, because I know there are others who would like to participate in 
this colloquy.
  Mr. McCAUL of Texas. I appreciate the gentleman's comments. Yet when 
it comes to national security, it should be bipartisan. We are 
Americans first, before we are Republican or Democrat, yet there is a 
special interest driving this agenda, as the gentleman mentioned. The 
trial lawyers have filed a lawsuit in San Francisco against the 
telecommunication companies, and I would like for the gentleman from 
Pennsylvania maybe to expand a little bit on that.
  I think most Americans don't quite understand how trial lawyers could 
drive the agenda with the Democratic leadership such that they will be 
placing the American people at grave risk and jeopardizing the safety 
of Americans.
  Mr. DENT. What I would respond is that the telecommunication 
companies at the request of their government were asked to cooperate 
and help us pursue terrorists. Obviously they have much of the 
infrastructure that we need to pursue these terrorists.
  I would have to put this whole issue under the category of ``no good 
deed goes unpunished,'' where people who are acting in good faith to 
help their government are now being sued for their efforts, again to 
protect the most litigious elements of our society.
  Because of that, because of the failure to provide a retroactive 
immunity as contained in the Protect America Act, when we do not 
provide that retroactive immunity, we know that these 
telecommunications can no longer be good partners. Even though they 
want to be helpful, they can't be. They have to protect themselves from 
lawsuits. They have a fiduciary responsibility to their shareholders to 
protect themselves and their organizations. I think that is really what 
is driving us.
  I would yield back to you, because you have been a distinguished 
member of the bar, you are a former U.S. Attorney, so you understand 
these issues probably better than just about anybody in this building.
  Mr. McCAUL of Texas. I think we should be thanking these companies 
for their patriotic service in a time of war, not slapping lawsuits on 
them or putting the trial lawyers' interests above the warnings of the 
Director of National Intelligence and the Attorney General. Not just 
the U.S. Attorney General, but 25 State Attorneys General have signed a 
letter calling upon this Congress to act and pass the Protect America 
Act and make it permanent. So I would put more stock in the top law 
enforcement leaders in 25 of our States and the U.S. Attorney General 
over the special interests.
  Mr. DENT. If the gentleman would yield briefly on that point, in fact 
my own Attorney General of the Commonwealth of Pennsylvania, Tom 
Corbett, came down to Washington to meet me and expressly asked me to 
support the Protect America Act. He too, like you, was a U.S. Attorney, 
and he was emphatic in his support for this legislation, and seemed a 
bit incredulous that Congress would not provide these necessary tools 
to our law enforcement and intelligence officials.
  Mr. McCAUL of Texas. With that, I would like to yield to the 
gentlewoman from Tennessee (Mrs. Blackburn) who sits on the Energy and 
Commerce Committee, which has jurisdiction and deals with a lot of the 
issues regarding telecommunications companies.
  Mrs. BLACKBURN. I thank the gentleman from Texas for his leadership 
on this issue, as well as the leadership that has come from the 
gentlewoman from New Mexico and also the gentleman from Pennsylvania. 
It is an issue that does need to be addressed. I would remind our 
constituents who are watching that we are talking about the Foreign 
Intelligence Surveillance Act, FISA. That is what it stands for.
  As the gentlewoman from New Mexico said, the changes in technology 
may mean that someone in the Horn of Africa who is calling in to a 
Middle Eastern country, their call ends up being routed through this 
country. What we are talking about is foreign intelligence and talking 
about getting information, gathering that intelligence that will keep 
Americans safe. As the gentleman from Pennsylvania said, our 
constituents are wanting to know, are we in danger? Are we in danger? 
Where is the next threat? Are you making certain that in our 
communities, in our homes, in our neighborhoods, in our schools, that 
we are going to be safe?
  We were just discussing a bit about the trial bar and their part in 
this issue, if you will. In mid-March I noticed an editorial in 
Investors Business

[[Page H1802]]

Daily and it was titled ``FISA Fix For Lawyers.'' Not my words, 
Investors Business Daily from a mid-March issue, ``FISA Fix For 
Lawyers.''
  Mr. Speaker, that kind of peaked my curiosity, so I read a bit about 
it. Basically what it goes on to say is that pretty much this bill 
could be considered an earmark for the trial bar.
  Well, I did a little bit of investigating on that issue, once I read 
that article, Mr. Speaker, and it seems that $72,440,904 had been given 
to the Democrats by the trial bar this cycle so far. That was through 
mid-March. So we will see what else happens with that figure.
  But it appears, as we have just discussed the lawsuits that are filed 
with the Ninth Circuit in San Francisco, that that may have a little 
bit to do, Mr. Speaker, with why Investors Business Daily would write 
an article and look at FISA as a fix for lawyers. Certainly something 
we do not want to do is have the integrity and the security of every 
single community in this great land of ours compromised in any way, 
shape or form because of that.
  Now, the gentleman from Texas mentioned that 45 days has passed since 
the Protect America Act expired, and that does cause some question from 
our constituents. As the gentleman from Pennsylvania mentioned, 
Attorneys General from 25 different States support the bipartisan 
Protect America Act, and independent intelligence reports support this.
  Mr. Speaker, I think there is indeed a reason. It is because we all 
know that protecting this Nation and our Nation's interests should rise 
above partisan debate on this floor. Of course, the bill that was 
brought to this floor before we departed for our Easter recess was a 
bill that the leadership knew was not going to go anywhere, but they 
felt like they had to do something.
  Mrs. Wilson mentioned that intelligence is dynamic. I think that is 
an important part of the debate that we have before us as we talk about 
FISA. It is indeed dynamic, because it doesn't stay the same. The 
individuals who are seeking to do us harm do not stay in the same 
places, nor are their camps nor are their cells stationary or stagnant. 
Because of that, we have to look at electronic surveillance as going 
about this a different way.
  The gentleman from Texas mentioned the situation that occurred last 
year with three American soldiers that were kidnapped in Iraq and the 
wrangling that had to go on to get through the courts, as he said, to 
get ``lawyered up,'' to get in there and to get a warrant. By that 
time, 9 hours had passed, and by that time we had one individual who 
was dead and we still have two who are missing as of this point in 
time.
  So, looking at 21st century technology, understanding how that 
technology works on a global basis, and understanding that if we are to 
stay ahead of the game on this, Mr. Speaker, it is imperative, it is 
imperative, that we realize that our enemies are using satellite 
phones. They are not using rotary phones. They are using text messages. 
They are not sending telegrams.

                              {time}  2030

  They are moving constantly; they are not in the same place. And it is 
imperative that we adjust our laws so that we have the ability to stay 
ahead of them, and ahead of their desire to do harm to us, our 
constituents, and our great Nation.
  Mr. McCAUL of Texas. I thank the gentlelady. And I couldn't agree 
more that real-time intelligence is the best weapon we have. We can get 
the intelligence; but if it is not in real-time, it endangers our 
ability to protect the American people, as the gentlelady pointed out 
with the three American soldiers from the 10th Mountain Division who, 
unfortunately, one now is no longer alive and two are missing.
  But I think it is important to give this an historical context and 
maybe take you back to a gentleman named Ramsey Yusef who came into the 
United States in 1992. He was detained; but because there wasn't enough 
detention space at the time, they let him go. And, from there, he 
conspired with the first al Qaeda cell in New York to take down the 
Twin Towers. And the idea of the plot was that one tower would fall, 
toppling over the other, and bring down the symbol of the economic 
superpower. They got a Ryder van, they loaded it up with explosives, 
went into the underground parking garage, and blew it up. Fortunately, 
the Towers survived that day. Although several people were killed, they 
didn't achieve that goal. That day would come later.
  Ramsey Yusef escaped afterwards, went to Islamabad where he was in 
Pakistan, the Philippines. Then he hooked up with his uncle Khalid 
Sheikh Mohammed. It is all in the family. Khalid Sheikh Mohammed, we 
would find out, would be the mastermind of September 11th. When they 
talked about in the mid-1990s flying airplanes into buildings, wouldn't 
it have been good to have that real-time intelligence? They talked 
about that. They talked about how they could take down the United 
States of America. And when Ramsey Yusef was finally arrested, he was 
arrested in a hotel room in Islamabad, they found something very eery. 
And I have worked with the FBI agents who arrested him, and it always 
left a very chilling sort of view in my mind, and that was, they found 
about a dozen baby dolls and these baby dolls were stuffed with 
chemical explosives. Mr. Yusef gives you great insight into the mind of 
the terrorists: Simple, brilliant, but evil genius. The same evil 
geniuses that perpetrated 9/11. He was planning to take those baby 
dolls on airplanes and blow them up. Of course, with the London 
arrests, later we would find they were back to their same game of using 
chemical explosives to blow up airplanes. Fortunately, our intelligence 
stopped that plot against the United States.
  But we all know what happened on September 11th. We also know there 
was a secret meeting that took place overseas, and that the CIA was 
possibly aware of two of these people entering our country. And at that 
time, the left hand didn't know what the right hand was doing all the 
time because the criminal division couldn't talk to the foreign 
counterintelligence division in the FBI. And I will never forget a 
quote from an FBI agent, because his words prior to 9/11 about his 
frustration apply the situation that I find and I think we find 
ourselves here in the House.
  He wrote to FBI Headquarters, which was a gutsy move for a line FBI 
agent, and he said, ``Someday, someone will die, and the public will 
not understand why we were not more effective at throwing every 
resource we had at certain problems, especially since the biggest 
threat to us now, Osama bin Laden, is getting the most protection.''
  We are not throwing every resource that we can now at this problem. 
We are turning a blind eye to this problem. And if American blood is 
spilled while our watch is down, while we have allowed this Act to 
expire, that blood will be on the heads of Members of Congress who did 
not allow this to go to the floor for a vote. And, yes, the foreign 
terrorists now are getting protection. They are getting constitutional 
protection that the FISA statute never intended for them to get in the 
first place.
  With that, I would like to yield to the gentlelady from New Mexico 
who is on the Intelligence Committee, Ms. Heather Wilson.
  Mrs. WILSON of New Mexico. I thank my colleague from Texas.
  One of the things that I think is important for people to understand 
is the importance of intelligence in keeping this country safe. In any 
war, I think intelligence is underestimated; and the reason is that we 
see the old newspaper headlines of the victory of the Navy at Midway, 
but you don't learn until years after that it was the breaking of the 
Japanese code that allowed our ships to be in the right place in the 
first place. We see the tremendous success of the Battle of Normandy, 
but we never knew until years later when it was finally declassified 
that we had broken the German code.
  So intelligence is often underrated. But in the war on terror, trying 
to prevent the next terrorist attack, intelligence is even more 
important than it ever was in the Cold War.
  I served in the Air Force during the Cold War, and the great thing 
about the Soviets was that they were certainly easy to find. They were 
easy to find, or as the military would say, they would have been hard 
to fix, easy to find. They had the same exercises at the same time of 
year using the same barracks and the same rail lines and

[[Page H1803]]

the same radio frequencies. We knew where they were. They would have 
been extremely difficult to defeat had they ever attacked the West, but 
we knew where they were.
  When we are fighting against terrorism, the problem is completely 
reversed. If we can find them, we can stop them. The difficult part is 
finding them. It is more like a Where's Waldo problem, you know, the 
cartoon books where you get all of these pictures and you are trying to 
find the little guy hidden in among all the rest of the clutter. 
Terrorists generally use commercial communications. They have no 
territory. They are hiding in the civil population, hiding in plain 
sight as it were. So, the intelligence problem is the most important 
and most difficult problem.
  All of us remember where we were the morning of 9/11. We remember who 
we were with, what we were wearing, who we called first, what we had 
for breakfast. But very few Americans remember where they were the day 
the British Government arrested 16 people who were within 48 hours of 
walking onto airliners at Heathrow and blowing them up over the 
Atlantic. If they had succeeded, more people would have died that day 
than died the morning of 9/11; but you don't remember it because it 
didn't happen, and it didn't happen because British, American, and 
Pakistani intelligence were able to uncover the plot and arrest those 
who were going to carry it out before they had an opportunity to.
  Good intelligence allows us to prevent another terrorist attack, and 
electronic surveillance is one of our strongest intelligence tools. The 
Protect America Act just allowed Americans to listen to foreigners in 
foreign countries without a warrant. If we don't have that authority, 
it is sometimes impossible to get to the standard required to get a 
warrant. It is almost a waste of time. It is an incredible frustration 
for our people who are working in intelligence.
  I mean, you think about this. If you are going to get a warrant on 
somebody who is a narcotics trafficker in Chicago, you can send the FBI 
out to talk to their neighbors; you can go to their place that they are 
working; you can talk to their landlady. You can develop probable cause 
for a warrant. But if you think you have got somebody on the Horn of 
Africa who is affiliated with al Qaeda, you can't send the FBI to talk 
to their neighbors. Sometimes you can't reach that standard of probable 
cause. So, intelligence doesn't get collected against people who are 
foreigners in foreign countries who have no rights at all under the 
Constitution of the United States, and the people who are hurt by that 
are the American citizens we are failing to protect.
  The majority of this House wants to pass a bipartisan bill that has 
already cleared the Senate that would make the provisions of the 
Protect America Act permanent, and the Democratic leadership of this 
House is blocking consideration of that bill, to the detriment of the 
people of this country.
  I yield back to the gentleman from Texas.
  Mr. McCAUL of Texas. I thank the gentlelady for her eloquence on this 
issue. And I think it is worth repeating again that we are talking 
about foreign targets in foreign countries overseas. I think the 
American people want us to be listening to what al Qaeda has to say. In 
fact, I think they expect that, and I think they would be shocked if 
they learned that our capabilities were put in jeopardy because of 
partisan politics and special interests. It is irresponsible. And, as 
the gentleman from Pennsylvania has often said, it is a dereliction of 
our duties here in the House to protect and defend the American people 
from enemies overseas.
  The gentlelady talked about the war with the Soviets. In some ways it 
was a more predictable enemy, and the concept of mutually assured 
destruction applied to the Soviets because they valued their own life. 
The concept of mutually assured destruction does not apply to the 
Islamic jihadists, because they won't think twice about blowing 
themselves up if it means they can take other lives, particularly 
American lives. They won't think twice about flying airplanes into 
buildings and killing almost 3,000 people, including themselves, 
because, in their extreme fanatical view, that means the rewards in 
heaven are greater. That is the mindset of the enemy that we are 
working with.
  Satellite imagery was very important in the Cold War. But in this 
war, this war on terror, intelligence is the best weapon that we have. 
And if that is taken away from the intelligence community, as the 
Democratic leadership is trying to do, if they take that capability 
away, as they did when they allowed the Protect America Act to expire, 
they are tying the hands of our intelligence community to better 
protect the United States of America. And I believe that is 
treasonness.
  With that, I yield to the gentleman from Pennsylvania.
  Mr. DENT. I want to thank both of you for your eloquence on this 
critical issue. And with all these references to 9/11, I really believe 
it is important that we take seriously what this Congress did after 9/
11. It created a commission, the 9/11 Commission, to make 
recommendations about how we can improve upon our Nation's homeland 
security and our national security. They made many recommendations; we 
are familiar with many. And, indeed, when the 110th Congress was first 
organized a little over 1 year ago, we were told by the new leadership 
under Speaker Pelosi that fulfilling those 9/11 Commission 
recommendations was a top priority. As it should be. And it is time 
that we equate those words with action. As you and I have both said, 
failure to do that is a dereliction of duty.
  I believe that we have it within our means now to do what that 9/11 
Commission wanted us to do, and I believe passing the Protect America 
Act is entirely consistent and compatible with what those folks who 
wrote the 9/11 Commission want us to do. And I believe that, again, 
failure to pass the Protect America Act really contravenes and 
contradicts what the 9/11 Commission stands for.
  We also talked about this issue of liability and who is getting 
protected. One thing I guess I find particularly appalling is that, 
because of this approach to homeland security and national security to 
intelligence, many of our intelligence officials and officers have been 
forced to buy personal liability insurance to protect themselves from 
lawsuits from us, from Congress, from others who may choose to sue 
them. The phone companies are getting sued. Why not sue the 
intelligence officials? So what is happening is they are worried about 
being sued, and that is why they have had to find this type of 
insurance.
  Mr. McCaul made a very interesting observation. He read an 
interesting quote a few minutes ago by that FBI agent, and I would like 
to put that quote into some context. In fact, at the time of the 
PATRIOT Act reauthorization a little over 2 years ago, there was an 
article written in the Wall Street Journal by a woman named Debra 
Burlingame. Who is Debra Burlingame? I guess she is best known because 
of her brother, Chic Burlingame, who was the pilot of one of the planes 
that crashed that day on 9/11, 2001 into the Pentagon. She had written 
this in the Wall Street Journal on January 30, 2006: Critics contend 
that the PATRIOT Act was rushed into law in a moment of panic. And 
there is relevant to our PAA here. The truth is, the policies and 
guidelines it corrected had a long troubled history, and everybody who 
had to deal with them knew it. The wall was a torturous set of rules 
promulgated by the Justice Department lawyers in 1995 and imagined into 
law by the Foreign Intelligence Surveillance Act Court, or the FISA 
Court, conceived as an added protection for civil liberties provisions 
already built into the statute that was the wall and its real world 
ramifications that hardened the failure to share culture between 
agencies, allowing early information about 9/11 hijackers Khalid al-
Midhar and Nawaf al Hashmi to fall through the cracks. More perversely, 
even after the significance of these terrorists and their presence in 
the country was known by the FBI's intelligence division, the wall 
prevented it from talking to its own criminal division in order to hunt 
them down.

                              {time}  2045

  In other words, the FBI criminal division and the FBI intelligence 
division couldn't communicate because of what was going on pre-9/11.
  ``Furthermore,'' she writes, ``it was the impenetrable FISA 
guidelines and

[[Page H1804]]

fear of provoking the FISA court's wrath if they were transgressed that 
discouraged risk-averse FBI supervisors from applying for a FISA search 
warrant in the Zacarias Moussaoui case.'' And we all remember him.
  ``The search, finally conducted on the afternoon of 9/11, produced 
names and phone numbers of people in the thick of the 9/11 plot, so 
many fertile clues that investigators believe that at least one 
airplane, if not all four, could have been saved.''
  That is what Debra Burlingame wrote.
  Further on in that article where Mr. McCaul began, and this is the 
woman whose brother was the pilot who crashed into the Pentagon on 9/
11, she concludes by saying: ``Three weeks before 9/11, an FBI agent 
with the bin Laden case squad in New York learned that al-Mihdhar and 
al-Hazmi were in this country. He pleaded with the national security 
gatekeepers in Washington to launch a nationwide manhunt and was 
summarily told to stand down. When the FISA Court of Review tore down 
the wall in 2002, it included in its ruling the agent's August 29, 
2001, e-mail to FBI headquarters,'' and I am going to restate what you 
just stated a few moments ago. The quote was from this FBI agent: 
``Whatever has happened to this--someday someone will die--and wall or 
not--the public will not understand why we were not more effective in 
throwing every resource we had at certain problems. Let's hope that the 
National Security Law Unit will stand behind their decisions then, 
especially since the biggest threat to us now, bin Laden, is getting 
the most protection.''
  Not my words, and how can anybody not be moved by this? How can 
anybody somehow think that our own FBI is a greater threat to the 
American people than is al Qaeda or Osama bin Laden?
  Mr. McCaul, you are an attorney. You understand this issue well. We 
want to protect everyone's civil liberties, and at the same time we 
have legitimate security threats we must deal with.
  Mrs. WILSON of New Mexico. I think my colleague from Pennsylvania 
raises a good point. What are the protections for America's civil 
liberties, and there has been a lot of misinformation out there about 
the protections in the Protect America Act for American civil 
liberties. In fact, in the Senate bill that we would like to have a 
vote on here in the House, the civil liberties protections for 
Americans are more than exist under current law, under the current FISA 
law.
  What are those protections? First, you have to have a warrant to 
target anyone in the United States, American or foreigner. So you must 
have a warrant if someone is reasonably believed to be in the United 
States.
  It is a felony to do what some have called reverse targeting. In 
other words, you think somebody may be affiliated with a terrorist 
group. They are in the United States and they have a brother in 
Lebanon. So gee, let's wiretap their brother in Lebanon and maybe we 
can pick up some of their conversations back to the guy in the United 
States. That is a felony. You can't do that. You have to have a warrant 
if your target is reasonably believed to be in the United States, and 
you cannot do reverse targeting.
  It also extends the protection of the Constitution to Americans 
traveling overseas. This is something that doesn't exist in current 
law. If I am an American stationed overseas, which I was in a past 
life, and I in some way bump into American intelligence collection 
overseas, their procedures in regulations is to ``minimize'' or 
``screen out'' that information, to destroy information that is of no 
intelligence value. But the act that has now passed the Senate actually 
goes further than that. If you are an American overseas, the American 
government would also have to get a warrant in order to target your 
communications.
  These provisions apply irrespective of the communications technology 
used. So to collect foreign intelligence over the air on a wire, it 
doesn't matter. All that matters is whether somebody is reasonably 
believed to be in the United States or is an American citizen. If they 
are, you have to go to court and get a warrant. If you do not, if they 
are a foreigner in a foreign country, we do not extend the protections 
of the Constitution to them.
  Mr. McCAUL of Texas. The gentlelady is correct. The Constitution 
applies to persons in the United States. The Constitution doesn't apply 
to foreign terrorists in a foreign country. I think that is the central 
heart of this debate that we are having here tonight.
  As the gentleman from Pennsylvania pointed out, Mr. Moussaoui 
retained information on his computer that could have helped prevent 
this from happening. He is a person in the United States; and as such, 
properly the FBI and the Department of Justice went through the FISA 
court. The initial FISA application was turned down by the Office of 
Intelligence Policy Review. We lost critical time in processing that 
application. My point being, the FISA court is very document intensive, 
cumbersome and time-consuming.
  We should not apply FISA court standards to foreign terrorists in a 
foreign country when real-time intelligence can stop something like 
this from happening here in the United States.
  You know, when the wall was in place, one intelligence community was 
aware of these two individuals in the U.S., yet the FBI was not made 
aware and they could not track them down.
  The FISA Court of Review issued an opinion about the wall when it 
finally struck it down and said that effective counterintelligence, we 
have learned, requires the whole-hearted cooperation of all of 
government's personnel who can be brought to the task. A standard which 
punishes such cooperation could well be thought dangerous to national 
security. So a lack of coordination and cooperation is dangerous to 
national security.
  And if we can't work with the private sector, and in fact we cannot 
obtain this intelligence without the private sector; and if we will 
subject them to liability and to lawsuits for doing their American 
patriotism, we indeed will lose the private sector as a partner.
  Mrs. WILSON of New Mexico. Would the gentleman yield?
  Mr. McCAUL of Texas. I would be happy to yield to the gentlelady.
  Mrs. WILSON of New Mexico. Is it true that we depend on telephone 
companies not only for their cooperation for foreign intelligence, but 
also in the case of crimes like kidnappings here in the United States? 
Do we depend on their cooperation there?
  Mr. McCAUL of Texas. The gentlelady is correct. What is at grave risk 
is not only in the war on terror capturing intelligence overseas, but 
if the private sector would be subject to liability and lawsuits, and 
they say to the government, ``I am not going to cooperate with you 
anymore,'' they don't have to. Then we place at jeopardy domestic 
investigations that could include child predators, organized crime, and 
a whole myriad of criminal activity in the United States. So this is 
setting a very dangerous precedent.
  Mrs. WILSON of New Mexico. If the gentleman would yield, you are an 
attorney and have dealt with these things and I haven't. Is it true 
that a district attorney can go in an emergency situation and say to 
the telephone company, this is an emergency, we have a kidnapped child, 
we think we know who did it, will you cooperate with us and we will 
followup with the paperwork later? Can that happen?
  Mr. McCAUL of Texas. The gentlelady is correct. Then you have real-
time information that is relevant to a case to stop a criminal act from 
occurring.
  What the Democrat leadership has done in this case is prevented us 
from obtaining intelligence critical to the safety of the United States 
overseas in a foreign country.
  Mrs. WILSON of New Mexico. Is it reasonable to expect that if these 
telephone companies get sued for voluntary cooperation, that they will 
just stop doing voluntary cooperation no matter what the issue is?
  Mr. McCAUL of Texas. The grave risk is that they will not cooperate 
on any investigation, whether it be overseas or domestically, because 
there is no incentive for them to cooperate with the FBI here or with 
our intelligence community abroad if we are going to subject them to 
liability and to lawsuits.
  If there is wrongdoing on the part of the government, that is one 
issue. But

[[Page H1805]]

when the telecommunication companies are told that they need to 
cooperate in the interest of the national security, I don't think we 
should be slapping them with a lawsuit, we should be thanking them for 
protecting this Nation.
  I want to go back to the gentleman's comments about the 9/11 
Commission. After this occurred, we all were scrambling to do 
everything within our power to prevent this from happening again. The 
President met with his advisors, and the 9/11 Commission met. And they 
made recommendations and they talked about connecting the dots. The 
problem is that we cannot connect the dots, and we are not putting this 
information together.
  What is at risk here tonight, as every hour passes that the Protect 
America Act has expired, is we cannot collect the dots to connect them.
  I would like to draw on a quote, a letter from Attorney General 
Muskasey and the Director of National Intelligence McConnell to 
Chairman Reyes. He says, ``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.''
  I don't know about you, but when I read that language from the 
experts in the intelligence community and our top law enforcement 
officer, it sends a chill up my spine. We need to pass this bill, and 
we need to do it now.
  Mr. DENT. Again, a powerful quote, the degradation and degrading of 
our intelligence capacities, stated by a Republican Attorney General 
and a Republican Director of National Intelligence, but also stated by 
the Democratic chairman of the Senate Intelligence Committee, that the 
intelligence product will be degraded as a result of our failure to 
enact the Protect America Act.
  I can't help but note, the gentleman from Texas having served in law 
enforcement, many of the arguments I just heard you talking about in 
your colloquy with Mrs. Wilson were also some of the arguments that I 
heard at the time of the PATRIOT Act reauthorization.
  Remember it was being said that somehow our library records were 
going to be looked into. Several of the 9/11 terrorists made their 
airplane reservations on public library computers, and they confirmed 
those reservations on public library computers.
  I am not aware that anybody has ever sought a library record under 
the law. But I also remember, too, after meeting with some folks from 
the Attorney General's Office, and this is not a classified issue, I 
remember them telling me that a terrorist, when interrogated, they 
asked: Why were you constantly on the New York Public Library 
computers? His response was they clean their hard drives at the end of 
the day. Interesting point.
  Another issue we heard at the time of the PATRIOT Act had to do with 
roving wiretaps, a tool I believe you, as a prosecutor, used over the 
years, and that we use in drug cases against organized criminals. We 
use that type of method. When we talk about using it for 
counterterrorism purposes, it seems as if we were creating some new 
structure. Do you want to address that.
  Mr. McCAUL of Texas. Reclaiming my time, this issue goes well beyond 
what the gentleman is referring to. This issue goes to our capability 
to intercept communications from foreign terrorists in foreign 
countries. Again, I think the American people would like to know what 
al Qaeda is saying when they conspire to perpetrate something like 
this. They would like to know what Osama bin Laden is saying, and what 
his lieutenants are saying.
  I know my time is starting to run out.
  Mr. DENT. Quickly, the bottom line is we should be listening to this 
foreign-to-foreign communication of people who are not American 
citizens who are suspected terrorists because you want to prevent what 
happened on 9/11 of 2001. For some of us, it was quite personal.
  You mentioned what happened in 1993. My cousin spent the whole day on 
the top of that building, the South Tower, spent the entire day on the 
roof after what exploded in the basement, the garage of that building.

                              {time}  2100

  You know, he was there, also, on September 11, 2001. I remember that, 
too. He was on the 91st floor of the north tower when the plane entered 
the 93rd floor. Everybody above him was killed.
  And for many of us it's personal. But if we have information, 
actionable intelligence, I would certainly hope that our counter 
terrorism officials, that our intelligence officials would do 
everything in their power to prevent such terrible events like 9/11 
from ever occurring.
  And again, I just want to state one more time that enacting the 
Protect America Act will help improve our intelligence capabilities, 
will protect Americans, and it's time that we get the job done. We have 
a bipartisan consensus to do it. Let's do it. The time for games is 
over. It's time to get the job done.
  I yield back to my friend.
  Mr. McCAUL of Texas. I thank the gentleman.
  Before we passed the Protect America Act, the Director of National 
Intelligence came to us and he said, ``I'm losing two-thirds of the 
intelligence out there.'' Well, now with the expiration of the Protect 
America Act, we can only imagine going back to that scenario. We were 
going dark in parts of the world. We were losing critical foreign 
intelligence from our enemy to better protect this Nation from another 
terrorist attack.
  And to put to you, I think, one of the best quotes I've read, it 
really puts you in the mindset of who is the enemy and what is the real 
threat to the United States, I'd like to leave you tonight with the 
following words. And this is in their words, not mine.
  ``The confrontation that we are calling for with the apostate regimes 
does not know Socratic debates, Plutonic ideals, nor Aristotle's 
diplomacy. But it does know the dialogue of bullets, the ideals of 
assassination, bombing and destruction, and the diplomacy of the cannon 
and the machine gun.
  The Islamic governments have never and will never be established 
through peaceful solutions and cooperate councils. They are 
established, as they always have been, through pen and gun, by word and 
bullet, and by tongue and teeth.''
  The words that I just read to you are the words found in the preface 
of the al Qaeda training manual. They are the words of the enemy. That 
is what the enemy is telling us. We need to win in this war on terror 
and stop this enemy and protect the United States from this ever 
happening on American soil again. It is time to pass a bipartisan 
Senate bill.

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