[Congressional Record Volume 154, Number 103 (Friday, June 20, 2008)]
[House]
[Pages H5739-H5741]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 PROVIDING FOR CONSIDERATION OF H.R. 6304, FISA AMENDMENTS ACT OF 2008

  Mr. ARCURI. Madam Speaker, by direction of the Committee on Rules, I 
call up House Resolution 1285 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 1285

       Resolved, That upon the adoption of this resolution it 
     shall be in order to consider in the House the bill (H.R. 
     6304) to amend the Foreign Intelligence Surveillance Act of 
     1978 to establish a procedure for authorizing certain 
     acquisitions of foreign intelligence, and for other purposes. 
     All points of order against consideration of the bill are 
     waived except those arising under clause 9 or 10 of rule XXI.
       The bill shall be considered as read. All points of order 
     against provisions of the bill are waived. The previous 
     question shall be considered as ordered on the bill to final 
     passage without intervening motion except: (1) one hour of 
     debate equally divided among and controlled by the chairman 
     and ranking minority member of the Committee on the Judiciary 
     and the chairman and ranking minority member of the Permanent 
     Select Committee on Intelligence; and (2) one motion to 
     recommit.
       Sec. 2. During consideration of H.R. 6304, pursuant to this 
     resolution, notwithstanding the operation of the previous 
     question, the Chair may postpone further consideration of the 
     bill to such time as may be designated by the Speaker.
  The SPEAKER pro tempore. The gentleman from New York is recognized 
for 1 hour.
  Mr. ARCURI. Madam Speaker, for purposes of debate only, I yield the 
customary 30 minutes to the gentleman from Washington (Mr. Hastings). 
All time yielded during consideration of the rule is for debate only.


                             General Leave

  Mr. ARCURI. I ask unanimous consent that all Members have 5 
legislative days within which to revise and extend their remarks and 
insert extraneous materials into the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. ARCURI. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, House Resolution 1285 provides for consideration of 
H.R. 6304, the FISA Amendments Act of 2008. The rule provides 1 hour of 
debate equally divided among and controlled by the chairman and ranking 
minority member of the Committee on the Judiciary and the chairman and 
ranking minority member on the Permanent Select Committee on 
Intelligence.
  Madam Speaker, we have come a long way on the crucial issue of 
intelligence gathering. First, I must commend our majority leader, Mr. 
Hoyer, for his commitment and dedication to reaching a sensible, 
bipartisan and bicameral agreement on FISA. Ensuring that we provide 
our Nation's intelligence community with the necessary tools and 
resources to prevent a future terrorist attack on our Nation must 
transcend partisan politics, and doing it in a way that protects the 
rights guaranteed to law-abiding Americans under this Constitution.
  Clearly, thanks to the hard work of Mr. Hoyer, Minority Whip Blunt, 
Chairman Reyes and many others, we will continue to work to protect the 
American people today.
  Bringing this FISA agreement to the floor is the result of months of 
long and thoughtful deliberation between the House and Senate, 
Democrats and Republicans, and the White House. What we're doing today 
is proof that we in the House should not have to just settle on the 
will of the Senate. It's proof that we can achieve a bipartisan, 
bicameral agreement on how our Nation gathers its intelligence. This 
type of bipartisanship is precisely what the American people expect of 
us.
  Today we're not voting on the Senate version of the bill, instead we 
have the opportunity to vote in favor of a sensible, bipartisan FISA 
bill that will help protect our Nation from terrorism, while protecting 
the civil liberties we, as Americans, hold dear.
  I also admit that I don't think the FISA agreement is perfect, but 
seldom should we expect an opportunity to vote in favor of legislation 
that every Member of this Chamber believes to be perfect.
  Effective legislation demands bipartisan consensus. And an example of 
such bipartisan consensus is the issue of immunity for telecom 
companies. The civil liberty protection provision in this agreement 
finally removes the shackles for our telecom companies to tell their 
side of the story. No longer can the administration step in and assert 
the ``State Secrets Privilege'' and deny telecom companies and the 
plaintiff seeking to protect his or her Constitutional rights the 
opportunity to make their case in front of a judge.
  As a former district attorney, I for one couldn't agree more that if 
the intelligence community goes to a telecom company with adequate 
authorization and says, we need communication records for person X 
because he or she is believed to be a terrorist, the telecom company 
deserves to be afforded that protection.
  Unfortunately, under the old system we would never know if adequate 
authorization and substantial evidence, for that matter, ever existed. 
Thanks to this bipartisan agreement, we now will.
  Madam Speaker, we have come a long way over the last few months. We 
can all agree that the world changed on September 11, 2001. Our Nation 
faces new threats on new fronts. What we are doing here today is proof 
that we can come together, Republicans and Democrats, to provide our 
Nation's intelligence community with the necessary tools to face and 
fight those threats, while protecting the civil liberties of Americans, 
and ensuring that the rights guaranteed under the Constitution are not 
mere words but, rather, solemn ideas that our Nation holds dear.
  I reserve the balance of my time.
  Mr. HASTINGS of Washington. Madam Speaker, I want to thank the 
gentleman from New York (Mr. Arcuri) for yielding me the customary 30 
minutes, and I yield myself as much time as I may consume.
  (Mr. HASTINGS of Washington asked and was given permission to revise 
and extend his remarks.)
  Mr. HASTINGS of Washington. Madam Speaker, I am very pleased to be 
able to urge my colleagues to support this rule and the underlying 
bipartisan bill to update our Nation's Foreign Intelligence 
Surveillance Act.
  Since the Protect America Act expired in February, our Nation has 
been relying on an outdated 1970s law to monitor foreign persons in 
foreign places who seek to do our Nation's citizens harm. At long last, 
Madam Speaker, the House will be permitted to vote on a bipartisan bill 
that our Nation's intelligence leaders are confident will allow them to 
do their jobs without costly delays and mountains of paperwork.
  This bill is not perfect, but it takes vital steps to modernize FISA 
to reflect 21st century cell phone and Internet technology, and to 
protect our Nation from today's determined and sophisticated terrorist 
threats.
  In February, 68 Senators voted to pass a bipartisan compromise. Yet, 
ever since that overwhelming bipartisan Senate vote, the liberal 
leaders of this House have refused to allow a vote because they knew a 
majority would pass it. Republicans tried for months to advance the 
bipartisan Senate compromise to a vote in the House, but we were 
blocked time after time. Today, this blockade will be broken when 
Democrats join Republicans in voting to pass the bipartisan FISA 
modernization bill.
  So Madam Speaker, I urge my colleagues to vote for this rule and the 
underlying bill.
  I reserve the balance of my time.
  Mr. ARCURI. Madam Speaker, I'd just like to read a quote today from 
The Washington Post on the FISA legislation that we are considering 
today.

[[Page H5740]]

The article is entitled ``A Better Surveillance Law.'' I just want to 
read one excerpt from it:

       ``Congress shows it still knows how to reach a compromise 
     in the national interest. Congressional leaders in both 
     parties should be commended for drafting legislation that 
     brings the country's surveillance laws into the 21st century, 
     while protecting civil liberties and preserving important 
     national security prerogatives.''

  Madam Speaker, it's this type of bipartisanship that I think the 
American people expect out of Congress. And I believe that, as my 
colleague from Washington just said, this bill is not perfect. But it 
is the kind of compromise that people expect from their congressional 
leaders in a way that protects us, and, at the very same time, ensures 
that the civil liberties guaranteed under the Constitution, again, are 
not just mere words but rather strong ideals that we preserve. So, 
again, I strongly urge my colleagues to support this rule. With that, I 
would reserve the balance of my time.
  Mr. HASTINGS of Washington. Madam Speaker, if I could inquire of my 
friend from New York, I have no requests for time and I'm prepared to 
yield back if the gentleman is prepared to close.
  Mr. ARCURI. Madam Speaker, we're waiting on several speakers who 
aren't here yet. But if the gentleman is ready to close, we are 
prepared to close as well.
  Mr. HASTINGS of Washington. With that, Madam Speaker, I yield back my 
time.
  Mr. ARCURI. Madam Speaker, as I said earlier, we have come a long way 
over the last few months. We can all agree that the world changed on 
September 11, 2001. Our Nation faces new threats on new fronts. What 
we're doing here today is proof that we can come together, Republicans 
and Democrats, to provide our Nation's Intelligence Community with the 
necessary tools to fight terrorism while protecting civil liberties of 
Americans.

                              {time}  1000

  Again, I commend Majority Leader Hoyer, Minority Leader Blunt, 
Chairman Reyes and Conyers, and many others who were able to go beyond 
the partisanship that too often consumes this Chamber and deliver a 
sensible FISA bill that we can be proud of.
  I urge a ``yes'' vote on the previous question and on the rule.
  Mr. McGOVERN. Madam Speaker, I will oppose the underlying FISA bill.
  Yes, this represents a compromise. It is better than what President 
Bush first proposed. But, that's not good enough. That's not a high 
enough standard.
  I want to remind my colleagues that what we are debating today is 
something very serious. We are talking about our most basic civil 
liberties and civil rights. And when it comes to those issues and 
principles we must be very, very careful.
  This compromise still provides immunity for telecom companies that 
may have participated in President Bush's illegal surveillance program 
and it fails to adequately protect the privacy rights of law abiding, 
innocent American citizens. Furthermore, the bill has a four year 
sunset provision which, in my view, is much too long.
  I know that we live in a dangerous world. I am well aware that there 
are some who want to do us harm. It is for that reason I understand the 
need to update our laws to better protect our people.
  I continue to believe that we can do that--without turning our backs 
on the values and principles that make America unique and great. This 
bill goes too far. I urge a ``no'' vote.
  Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today in opposition 
to the rule on H.R. 6304, the ``FISA Amendments Act of 2008.'' I am 
disappointed that I did not have the opportunity to restore my language 
regarding reverse targeting, which was included in the FISA legislation 
passed by the House. This body has worked diligently with our 
colleagues in the Senate to ensure that the civil liberties of American 
citizens are appropriately addressed. Sadly, this compromise bill, 
falls short of that aim. I will support no bill that fails to protect 
American civil liberties, both at home and abroad.
  The bill contains a general ban on reverse targeting. However, it 
lacks the strong language that I worked so diligently to include in the 
original House legislation sent to the Senate. In my view, the RESTORE 
Act is far superior to this piece of legislation. I wish to take a few 
moments to discuss the improvement that I offered to the RESTORE Act in 
the full Judiciary Committee markup, and which was sent over to the 
Senate for consideration just a few months ago.
  My amendment, which was added during the markup, made a constructive 
contribution to the RESTORE Act by laying down a clear, objective 
criterion for the administration to follow and the FISA court to 
enforce in preventing reverse targeting.
  Reverse targeting is the practice where the Government targets 
foreigners without a warrant while its actual purpose is to collect 
information on certain U.S. persons.
  One of the major concerns that libertarians and classical 
conservatives, as well as progressives and civil liberties 
organizations, have with this legislation, as they did with its 
successor, the Protect America Act, is that the temptation of national 
security agencies to engage in reverse targeting may be difficult to 
resist in the absence of certain safeguards in the law to prevent it.
  My amendment attempted to produce such safeguards. My amendment 
reduced even further any such temptation to resort to reverse targeting 
by requiring the administration to obtain a regular, individualized 
FISA warrant whenever the ``real'' target of the surveillance is a 
person in the United States.
  The amendment achieved this objective by requiring the administration 
to obtain a regular FISA warrant whenever a ``significant purpose of an 
acquisition is to acquire the communications of a specific person 
reasonably believed to be located in the United States.''
  It is far from clear how the operative language ``reasonably designed 
to ensure that any acquisition authorized . . . is limited to targeting 
persons reasonably believed to be located outside the United States; 
and prevent the intentional acquisition of any communication as to 
which the sender and all intended recipients are known at the time of 
acquisition to be located in the United States.''
  Yes. It is true that H.R. 6304, the compromise legislation, attempts 
to ensure that American civil liberties are protected, but the 
operative language in the legislation does not provide a paradigm for 
consistency. This is so because it does not provide an objective 
criterion. H.R. 6304 does not go as far as the legislation that the 
House sent over to the Senate a few months ago. H.R. 6304 does not 
retain the objective standards contained in my amendment.
  The language used in my amendment, ``significant purpose,'' is a term 
of art that long has been a staple of FISA jurisprudence and thus is 
well known and readily applied by agencies, legal practitioners, and 
the FISA Court. Thus, the Jackson Lee amendment provided a clearer, 
more objective criterion for the Administration to follow and the FISA 
court to enforce to prevent the practice of reverse targeting without a 
warrant, which all of us can agree should not be permitted.

  A FISA order should be required in those instances where there is a 
particular, known person in the United States at the other end of the 
foreign target's call in whom the Government has a significant interest 
such that a significant purpose of the surveillance has become to 
acquire that person's communications. This protection has been stripped 
from H.R. 6304. I fought hard to keep this language in the bill because 
it is important to me; and it should be very important to members of 
this body and to all Americans. It is important that we require what 
should be required in all cases--warrant anytime there is specific, 
targeted surveillance of a United States citizen.
  I am unable to support this bill that will overhaul how the 
Government monitors foreign terrorist suspects. I will not support any 
legislation that grants legal immunity to telecommunications companies 
that provide information to Federal investigators without a warrant.
  Madam Speaker, this administration has the law to protect the 
American people. When Americans are involved, the Bill of Rights, the 
fourth amendment, civil liberties must be adhered to. This legislation 
does not go far enough to ensure that American rights are protected.
  The original legislation offered by the House Majority gave the 
Administration everything that it needed, but today, after months of 
negotiation, if we endorse H.R. 6304, which grants sweeping wiretapping 
authority to the Government with little court oversight and ensures the 
cases against the dismissal of all pending telecommunications 
companies, we are shredding the Constitution.
  Let me explain my objections to H.R. 6304. It permits the Government 
to conduct mass, untargeted surveillance of all communications coming 
into and out of the United States, without any individualized review, 
and without any finding of wrongdoing.
  H.R. 6304 permits minimal court oversight. The Foreign Intelligence 
Surveillance Court (FISA Court) only reviews general procedures for 
targeting and minimizing the use of information that is collected. 
Under these circumstances, the court may not know, what or where will 
actually be tapped.
  Madam Speaker, I have more objections to H.R. 6304 which I will 
quickly note. H.R. 6304 contains an ``exigent'' circumstances loophole 
that thwarts the judicial review requirement.

[[Page H5741]]

The bill permits the Government to start a spying program and wait to 
go to court for up to seven (7) days every time ``intelligence 
important to the national security of the U.S. may be lost or not 
timely acquired.'' The problem with H.R. 6034 is that court 
applications take time and will delay the collection of information. 
Therefore, it is possible that there will not be resort to prior 
judicial review.
  Under H.R. 6304, the Government is permitted to continue surveillance 
programs even if the application is denied by the court. The Government 
has the authority to wiretap through the entire appeals process, and 
then keep and use whatever it gathers in the meantime.
  I am also troubled by H.R. 6304's dismissal of all, cases pending 
against telecommunication companies that facilitated the warrantless 
wiretapping program over the last 7 years. The test in the bill is not 
whether the Government certifications were actually legal--only whether 
they were issued. Because it is public knowledge that they were, all 
the cases seeking to find out what these companies and the Government 
did without communications will be dismissed. Under this bill, we will 
start as a tabula rasa. Telecommunications companies will be prevented 
from having their day in court and we, the American people, will never 
have a chance to know what the companies did and what information is 
collected. I am deeply troubled by this, and frankly, you should be, 
too.
  Madam Speaker, let me be clear in my opposition. Nothing in the Act 
or the amendments to the Act should require the Government to obtain a 
FISA order for every overseas target on the off chance that they might 
pick up a call into or from the United States. Rather, what should be 
required, is a FISA order only where there is a particular, known 
person in the United States at the other end of the foreign target's 
calls in whom the Government has a significant interest such that a 
significant purpose of the surveillance has become to acquire that 
person's communications.
  Thus, the way forward to victory in the war on terror is for the 
United States country to redouble its commitment to the Bill of Rights 
and the democratic values which every American will risk his or her 
life to defend. It is only by preserving our attachment to these 
cherished values that America will remain forever the home of the free, 
the land of the brave, and the country we love.
  Madam Speaker, FISA has served the Nation well for nearly 30 years, 
placing electronic surveillance inside the United States for foreign 
intelligence and counterintelligence purposes on a sound legal footing, 
and I am far from persuaded that it needs to be jettisoned.
  However, I know that FISA as outlined in this bill, H.R. 6304, 
attempts to curtail the Bill of Rights and the civil liberties of the 
American people. I continue to insist upon individual warrants, based 
upon probable cause, when surveillance is directed at people in the 
United States. The Attorney General must still be required to submit 
procedures for international surveillance to the Foreign Intelligence 
Surveillance Court for approval, but the FISA Court should not be 
allowed to issue a ``basket warrant'' without making individual 
determinations about foreign surveillance.
  Given the unprecedented amount of information Americans now transmit 
electronically and the post-9/11 loosening of regulations governing 
information sharing, the risk of intercepting and disseminating the 
communications of ordinary Americans is vastly increased, requiring 
more precise--not looser--standards, closer oversight, new mechanisms 
for minimization, and limits on retention of inadvertently intercepted 
communications.
  Madam Speaker, I encourage my colleagues to join me in opposing the 
rule on H.R. 6304. In my view, this is wrong and unacceptable.
  Mr. Arcuri. I yield back the balance of my time, and I move the 
previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.

                          ____________________