[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.
____________________