[Congressional Record Volume 158, Number 122 (Wednesday, September 12, 2012)]
[House]
[Pages H5890-H5900]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012

  Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 773, I 
call up the bill (H.R. 5949) to extend the FISA Amendments Act of 2008 
for five years, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore (Mr. Yoder). Pursuant to House Resolution 
773, the amendment in the nature of a substitute recommended by the 
Committee on the Judiciary printed in the bill is adopted, and the 
bill, as amended, is considered read.
  The text of the bill, as amended, is as follows:

                               H.R. 5949

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FISA Amendments Act 
     Reauthorization Act of 2012''.

     SEC. 2. FIVE-YEAR EXTENSION OF FISA AMENDMENTS ACT OF 2008.

       (a) Extension.--Section 403(b) of the FISA Amendments Act 
     of 2008 (Public Law 110-261; 122 Stat. 2474) is amended--
       (1) in paragraph (1), by striking ``December 31, 2012'' and 
     inserting ``December 31, 2017''; and
       (2) in paragraph (2) in the material preceding subparagraph 
     (A), by striking ``December 31, 2012'' and inserting 
     ``December 31, 2017''.
       (b) Conforming Amendment.--The heading of section 404(b)(1) 
     of the FISA Amendments Act of 2008 (Public Law 110-261; 122 
     Stat. 2476) is amended by striking ``december 31, 2012'' and 
     inserting ``december 31, 2017''.

  The SPEAKER pro tempore. The bill shall be debatable for 1 hour, with 
40 minutes equally divided and controlled by the chair and ranking 
minority member of the Committee on the Judiciary and 20 minutes 
equally divided and controlled by the chair and ranking minority member 
of the Permanent Select Committee on Intelligence.
  The gentleman from Texas (Mr. Smith) and the gentleman from Michigan 
(Mr. Conyers) each will control 20 minutes. The gentleman from Michigan 
(Mr. Rogers) and the gentleman from Maryland (Mr. Ruppersberger) each 
will control 10 minutes.
  The Chair recognizes the gentleman from Texas.


                             General Leave

  Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous materials on H.R. 5949, as amended, and currently 
under consideration.

[[Page H5891]]

  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. SMITH of Texas. I yield myself such time as I may consume.
  Mr. Speaker, America and its allies continue to face national 
security threats from foreign nations, spies, and terrorist 
organizations. Our national security agencies must be able to conduct 
surveillance of foreign terrorists and others so we can stop them 
before they disable our defenses, carry out a plot against our country, 
or kill innocent Americans.
  In 1978, Congress enacted the Foreign Intelligence Surveillance Act 
to provide procedures for the domestic collection of foreign 
intelligence. To protect Americans' civil liberties, FISA created 
Foreign Intelligence Surveillance Courts comprised of sitting Federal 
court judges.

                              {time}  1520

  If the government needs to collect domestic information for national 
security purposes, it must first request permission from a FISA judge. 
This is limited to domestic information. FISA was never intended to 
apply to the collection of information from non-U.S. persons in foreign 
countries.
  But advances in technology over the last 40 years have changed how 
overseas communications are transmitted. In 2006, then-Director of 
National Intelligence, Admiral Mike McConnell, stated that the 
intelligence community was not collecting approximately two-thirds of 
the foreign intelligence information that it collected prior to legal 
interpretations that required the government to obtain individualized 
FISA court orders for overseas surveillance. To solve the problem, in 
2008, Congress passed the FISA Amendments Act to reaffirm our 
longstanding intent that a court order is not required when a non-U.S. 
person outside the U.S. is targeted. The act continues the authority to 
collect intelligence from foreign targets located outside the United 
States.
  The FISA Amendments Act both strengthens our national security and 
expands civil liberties protections for all Americans. The act requires 
an individualized court order for the government to target an American 
anywhere in the world. Under the FISA Amendments Act, the government 
cannot conduct any surveillance overseas without authorization. The 
government cannot target individuals unless there is a reasonable 
belief they are not in the United States, which the government must try 
to ascertain.
  The government cannot intentionally acquire communications when the 
sender and recipient are both in the United States without an 
individualized court order from a FISA judge. The government cannot 
reverse-target individuals overseas in order to monitor those in the 
United States. This means that the government cannot target a U.S. 
person simply by monitoring a non-U.S. person that the U.S. person is 
talking to. And for the first time in history, the government must 
obtain an individualized court order from the FISA court to target 
Americans outside the United States.
  Foreign surveillance under the FISA Amendments Act is subject to 
extensive oversight by the administration and Congress. Every 60 days, 
Justice Department national security officials and the Director of 
National Intelligence conduct onsite reviews of surveillance conducted 
pursuant to the FISA Amendments Act. In addition, the Attorney General 
and the Director of National Intelligence conduct detailed assessments 
of compliance with court-approved targeting and minimization procedures 
and provide these amendments to Congress twice a year.
  The administration also is required to submit to the Judiciary and 
Intelligence Committees a copy of any FISA court order opinion or 
decision. It must also submit the accompanying pleadings, briefs, and 
other memoranda of law from national security officials within the 
intelligence community that relate to a significant construction or 
interpretation of any provision of FISA.
  This law will expire at the end of this year unless Congress 
reauthorizes it. President Obama has identified reauthorization of the 
FISA Amendments Act as the top legislative priority of the intelligence 
community and requests Congress to extend the law for 5 years. H.R. 
5949 is a bipartisan piece of legislation to do just that, extend the 
FISA Amendments Act to December 31, 2017.
  Foreign terrorists continue to search for new ways to attack America. 
Foreign nations continue to spy on America, to plot cyberattacks, and 
attempt to steal sensitive information from our military and private 
sector industries. They are committed to the destruction of our 
country, and their methods of communication are constantly evolving.
  We have a solemn responsibility to ensure that the intelligence 
community can gather the information it needs to protect our country 
and protect our citizens. This bipartisan bill ensures that our country 
will be able to identify and prevent threats to our national security 
without sacrificing the civil liberties of American citizens.
  I urge my colleagues to join me in support of this bill, and I 
reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, on our side, I would begin our discussion 
by yielding 3 minutes to the distinguished senior member of Judiciary, 
ranking member of Immigration, the gentlewoman from California (Ms. 
Lofgren).
  Ms. ZOE LOFGREN of California. Mr. Speaker, I urge this body to 
reject this bill.
  The surveillance bill raises several serious constitutional and civil 
liberties issues that Congress needs to address and has not addressed 
in this bill, and I'd like to discuss just one of those.
  Congress should prohibit the Federal Government from intentionally 
searching for information on a U.S. person in a data pool amassed 
lawfully under section 702 of FISA--should such a data ever be 
amassed--unless the searching official has a warrant.
  Now, the FISA Amendments Act of 2008 does not make clear that the 
government must obtain a warrant prior to searching for information 
acquired incidentally on a U.S. person in a large pool of data that the 
government has already lawfully obtained under section 702, should such 
a data pool ever be amassed. Instead, the information about the U.S. 
person in such a situation is subject to minimization procedures 
adopted by the Attorney General, and that must be approved by the FISA 
court, but that does not explicitly include a warrant requirement, 
which I think the Constitution requires.
  The prohibition on reverse-targeting--where the government 
deliberately targets a non-U.S. person for the purpose of acquiring 
information about the U.S. person at the other end of the line--is not 
a substitute for the warrant requirement to search a database for U.S. 
persons, should such a database ever be amassed under section 702. 
Minimization procedures are not a substitute for a warrant in such a 
case.
  Now, I think that the government needs to comply with the Fourth 
Amendment to the Constitution all the time. I think that the privacy of 
Americans should not be subject to the lower standard of minimization 
procedures. That's not in the Constitution. And I think, also, that 
when we think that we should trade the protections that our Founding 
Fathers devised for us in the United States Constitution in the effort 
to buy safety, we're mistaken. We can be safe while still complying 
with the Constitution of the United States.

  I'm mindful that we began this Congress reading most of the United 
States Constitution on the floor of this House. It's ironic, indeed, 
that we should be ending this Congress with a bill that does violation 
to that very body.
  I thank the gentleman for yielding.
  Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman 
from California (Mr. Daniel E. Lungren), who is the chairman of the 
Administration Committee here in the House, a senior member of the 
Judiciary Committee, and a former attorney general of California.
  Mr. DANIEL E. LUNGREN of California. I thank the gentleman for 
yielding.
  Mr. Speaker, I rise in support of the extension of the FISA 
Amendments Act of 2008.
  I would just have to say this is critical to the protection of the 
American people. With the events over the last couple of days, we need 
not be reminded of this solemn responsibility 1 day after the 11th 
anniversary of 9/11.
  If you will recall, one of the main points made by the 9/11 
Commission in

[[Page H5892]]

their after-action report was that we, as a Nation, had not done 
enough--that is, the Government of the United States had not done 
enough--to connect the dots to warn us sufficiently to protect against 
the attack which caused the death of over 3,000 on our homeland. In 
order to connect the dots--that is, the items of information, the 
intelligence--you have to have the dots, you have to have the 
intelligence. That's precisely what the extension of these amendments 
will allow us to do.
  But initially, it's important to understand from the outset of this 
debate what this legislation would do as well as what it does not do.

                              {time}  1530

  We are seeking to address the essential need for us to be able to 
monitor communications by terrorists and other foreign adversaries 
located outside the United States. We're not debating the PATRIOT Act 
here. We're not talking about national security letters. We're not 
talking about those things that are directed at Americans.
  The annual certification procedures provided under the FISA 
Amendments Act do not allow the targeting of Americans outside the 
United States. Thus, if an American is targeted anywhere in the world, 
or if a person is targeted within the United States, an individualized 
court order is required.
  In cases involving a foreign terrorist outside the United States, the 
Foreign Intelligence Surveillance Court approves annual certifications 
submitted by the Attorney General and the Director of National 
Intelligence. This is a court made up of article III judges, judges 
with lifetime appointments, with the independence that was accorded 
them under the Constitution.
  And I would remind my colleagues that the appellate review, the 
appellate division of the Foreign Intelligence Surveillance Court, is 
also comprised of article III judges.
  It is important to note we're not providing for warrantless 
surveillance here. In fact, the FISA Amendments Act has enhanced the 
statutory protections afforded to U.S. persons under the law. Because 
it was the first time, under these amendments that we wish to extend, 
we required an individual FISA court order to conduct overseas 
intelligence collections on U.S. citizens and permanent residents. Even 
if they're overseas, we now require that. It was not required by 
statute before that.
  Before that, the Attorney General approved such collections against 
U.S. persons outside the U.S., pursuant to an executive order of the 
President. We all know that executive orders of the President can be 
changed by a President while in office, or a succeeding President.
  I would submit that if you are concerned about civil liberties, and I 
assume everybody in this debate is, returning to the good old days 
prior to the enactment of the FISA Amendments Act is not a step forward 
for civil liberties.
  It should also be understood that we're not seeking to extend the 
underlying Foreign Intelligence Surveillance Act in its entirety. Today 
we're attempting to achieve the rather modest purpose of the 2008 
amendments. Again, court approval of annual certification by the DNI, 
the Director of National Intelligence, and the Attorney General, 
identifying categories of foreign intelligence agents outside the 
United States is required. An individualized court order is required in 
other cases.
  The legislative history of FISA is instructive. The House Permanent 
Select Committee on Intelligence report that accompanied FISA in the 
initial act in 1978 clearly expressed Congress' intent to exclude 
overseas intelligence activities from the reach of FISA. These were the 
words of that report:

       The committee has explored the feasibility of broadening 
     this legislation to apply overseas, but has concluded that 
     certain problems and unique characteristics involved in 
     overseas surveillance preclude the simple extension of this 
     bill to overseas surveillance.

  In other words, overseas surveillance was never the focus of the 1978 
act. Rather, it focused on domestic surveillance of persons located 
within the United States to ensure that there were protections in that 
regard.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. SMITH of Texas. I will yield the gentleman an additional minute.
  Mr. DANIEL E. LUNGREN of California. The FISA Amendments Act under 
consideration here today requires an individualized court order in 
cases where an American is the target, no matter where they may be 
located.
  Here's the reason why this is important. It is the change in 
communications, the nature of communications that required us to do the 
amendments. If we fail to pass this, we will, as former DNI Director 
McConnell stated, we will lose two-thirds of those dots, those bits of 
information, the intelligence that we need to connect to protect us. We 
will put in very much manner the country at risk.
  If you look at a simple risk analysis, you have to do threat, you 
have to do vulnerability, you have to do consequence. We can figure out 
what the vulnerability is by our inspection of our own resources and 
infrastructure. We can figure out what the consequences are.
  What we have to have, in order to figure out the threat, is a means 
of collecting intelligence. We have to pass this law, a bipartisan law.

  I recall being here and having the former Speaker of the House spend, 
I think, 7 minutes arguing on behalf of this, and the gentleman who is 
Number two on the Democratic side as well.
  It has never been partisan. Hopefully, we can have bipartisan support 
expressed in the vote for these amendments.
  Mr. CONYERS. Mr. Speaker, I yield myself 15 seconds to let my 
distinguished colleague and friend from California know that we're in 
complete agreement with most of what he said, except that all we want 
to do is limit this to a 3-year measure instead of 5 years. Now, 
there's a compromise you can't turn away from.
  At this point I yield 3 minutes to the distinguished senior member 
from the Judiciary Committee, Jerry Nadler.
  Mr. NADLER. I thank the gentleman.
  Mr. Speaker, I rise in opposition to the FISA Amendments Act of 2012. 
If we had had an opportunity to evaluate this law based on experience 
with it, and to consider some amendments and alternatives, this 
opposition would not be necessary. But the Republican majority has, 
once again, told the Members of this House and the American people that 
it's ``my way or the highway.''
  While it is certainly appropriate for our government to gather 
foreign intelligence, and while some degree of secrecy is obviously 
necessary, it is also vital in a free society that we limit government, 
protect the constitutional rights of Americans here and abroad, and 
limit warrantless spying to genuine foreign intelligence.
  Unfortunately, we have seen repeatedly how even the very minimal 
restraints Congress put on FISA have been violated. We should address 
those abuses. Congress has an obligation to exert more control over spy 
agencies than simply to give them a blank check for another 5 years.
  The gentleman from Michigan (Mr. Conyers) had an amendment that would 
have shortened the sunset by 2 years, but we won't even have a chance 
to consider it, perhaps because some of our Republican colleagues might 
also want to support such an amendment. As a result, we will not 
revisit the law until after the end of the next presidential term.
  And if we had cut shorter this extension, we could do what we should 
have done but haven't: hold hearings, look into how the law is 
operating, and decide what amendments and protections are necessary to 
make sure it operates right so that we can collect the intelligence 
without violating the constitutional rights of Americans.
  I had an amendment that would have required the Attorney General to 
make publicly available a summary of each decision of the FISA court 
and the FISA court of review that includes a significant construction 
of section 702, which allows warrantless surveillance, with appropriate 
security redactions and editing.
  Many American citizens and others who have nothing to do with foreign 
intelligence gathering are caught up in this surveillance, and 
government has an obligation to protect their rights. The FISA court is 
supposed to do that, and we need to ensure that the law and the courts 
are working.
  Disclosure of classified information is not needed to know whether 
the court performs meaningful oversight of

[[Page H5893]]

the executive branch, applies minimization standards correctly, and 
whether or not we ought to amend the law.
  The gentleman from Wisconsin (Mr. Sensenbrenner) said, ``rather than 
playing the numbers game, either with the actual targets or the people 
who are incidentally surveilled, perhaps decisions of the FISA court, 
particularly the review of the FISA court, appropriately redacted, 
would be able to give us the answer to that question. I have always 
been one that favored disclosure.''
  The gentleman from Wisconsin is right. If the FISA court is just a 
rubberstamp of the executive branch, we and the public should know 
that. And if the court really does provide meaningful oversight and 
meaningful limitations on the executive branch, we and the public 
should know that too.
  But we won't get to discover that or to debate that. Failure to do so 
is a dereliction of our constitutional duty to protect the 
constitutional rights of American citizens and the betrayal of our 
liberties.
  I urge my colleagues to reject this legislation and demand that we 
properly consider this very important issue by a somewhat shorter 
extension and by proper hearings and examination of the limitations and 
the workings of this law.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman 
from California (Mr. McClintock).

                              {time}  1540

  Mr. McCLINTOCK. I want to thank the chairman for yielding to a 
contrary point of view.
  Mr. Speaker, FISA allows the government to target foreign nationals 
and to intercept their communications, even those with American 
citizens, without a warrant, as required by the Fourth Amendment.
  Now, we're told don't worry. The law requires that any irrelevant 
information collected in this manner be disregarded. Well, here is the 
problem. The enforcement of this provision is, itself, shrouded in 
secrecy, making the potential for abuse substantial and any remedy 
unlikely. Secret courts and warrantless surveillance are not compatible 
with a free society or the English common law or the American 
Constitution.
  We are told FISA is necessary to stop terrorist plots and that this 
protection trumps privacy or due process concerns. Well, Ben Franklin 
answered that argument years ago when he warned us that those who can 
give up essential liberty to obtain a little temporary safety deserve 
neither liberty nor safety. In fact, America's security is far better 
assured as a thriving free society in a world that respects her 
strengths and fears her just vengeance.
  Mr. CONYERS. Mr. Speaker, I yield myself 20 seconds to commend the 
statement by the gentleman from California in this regard. Also, on the 
subject of transparency, two Senators--one from Oregon, the other from 
Colorado--asked the Director of National Intelligence how many 
Americans are affected by this law.
  The answer: We don't know.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CONYERS. I yield myself 10 more seconds.
  Now, we don't know if he meant that he didn't want to tell us that he 
knew or that he honestly didn't know. Either response or explanation is 
inadequate.
  Mr. Speaker, I am pleased to yield 3 minutes to the distinguished 
gentlelady from Houston, Texas, Ms. Sheila Jackson Lee.
  Ms. JACKSON LEE of Texas. Thank you, Mr. Chairman.
  Mr. Speaker, I am delighted to join the chairman of the full 
committee and the ranking member of the full committee in this vigorous 
debate on the Constitution. I am also delighted that the ranking member 
has indicated, by his reference to the previous speaker, that this is a 
bipartisan challenge and question about the reauthorization. This does 
not have a partisan place. It does have a place in the Constitution.
  As I do this, might I take just a moment, Mr. Chairman and Mr. 
Ranking Member, just to acknowledge the loss of our Americans who fell 
in Libya--Ambassador Stevens and those who were securing him. It is a 
recognition that we live in a difficult world; but one of the 
distinctive aspects of America is that we live in a free country, that 
we are willing to accept the distinctions and differences of all people 
and that we respect the privacy and the Fourth Amendment.
  So I might refresh my fellow colleagues as to what FISA does from the 
very beginning. It is electronic surveillance, physical searches, the 
installation and use of pen registers and trap-and-trace devices, and 
demands for the production of physical items. Although FISA is designed 
for intelligence gathering and not for the collection of criminal 
evidence, the law applies to activity to which a Fourth Amendment 
warrant requirement would apply if they were conducted in a criminal 
investigation. Members need to understand there are questions of the 
Fourth Amendment right here. So what those of us who have a concern on 
this reauthorization are asking for has simple premise:
  We want to join with Congressman Conyers and his simple amendment 
that allows for greater congressional oversight and the protection of 
the Fourth Amendment as it relates to Americans by shortening the 
reauthorization to 2015 from 2017. It intrudes the Congress properly in 
oversight. In addition, there should be more transparency in the 
surveillance program, such as requiring the creation of unclassified 
versions of the intelligence assessments of the surveillance program, 
requiring the creation of unclassified summaries.
  I introduced a simple amendment. We all have respect for the 
Inspector General's office. That is one independent force of our 
agencies that most Members of Congress will not challenge. My amendment 
would require a report by the Inspector General of the Department of 
Justice and the Inspector General of the intelligence community on the 
implementation of the surveillance program under the FISA Amendments 
Act of 2008.
  Now, let me try to find out what the horrifically liberal groups are 
that are concerned about this. What about the American Library 
Association? the Association of Research Libraries? the very well-
respected Brennan Center for Justice? the Center for Democracy & 
Technology? the OpenTheGovernment
.org?
  What we are simply saying today--and we hope our colleagues will 
listen on both sides of the aisle--is that, yes, we can reauthorize 
this legislation but that, no, we cannot abdicate the questions of 
congressional oversight. Today, we had a hearing on the abuse of power. 
The only issue in abuse of power is whether or not we respect the three 
branches of government. That is the argument we are making today. Do 
you respect the three branches of government--the people's House, who 
represent the people, who by themselves cannot defend themselves 
against this extensive reauthorization?
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. CONYERS. I yield the gentlelady 30 more seconds.
  Ms. JACKSON LEE of Texas. In the course of this particular 
legislation, we had to contend with such things as warrantless 
wiretapping. Again, as I indicated, the need for the intruding of the 
Congress is a respect of the liberties which we want to protect.
  So I would ask my colleagues to yield to transparency, to yield to a 
shorter extension. Make this bill stand on its own two feet juxtaposed 
to the Constitution. While we mourn those who have fallen, we respect 
that this is a free country. Today, we are not acting on that freedom 
by giving up the congressional oversight that is necessary. I ask my 
colleagues to reject the present form of this bill. I beg the Senate to 
look more readily at a shorter extension and more transparency.
  I rise in opposition to the FISA Amendments Act of 2008. I believe 
that although we had a chance to discuss this reauthorization in the 
Judiciary Committee, the full import of this bill is too broad and more 
debate and consideration is necessary. The fact is not lost on me that 
this is the 11th year following the attacks of 9-11.
  I open my statement with a quote from one of my heroines, and a 
trailblazer on so many levels, Barbara Jordan, who said: ``What the 
people want is very simple--they want an America as good as its 
promise.''
  Over the past year, Senate and House Democrats have worked with their 
Republican counterparts, the Administration, the intelligence 
community, and privacy advocates to

[[Page H5894]]

develop proposals for amendments to FISA that would give the 
intelligence community the flexibility it needs to safeguard our 
nation, while also providing strong protections for civil liberties. A 
proper balancing is America--as good as its promise.
  And in-keeping with the notion of balance, I offered an amendment 
during the Judiciary Committee Markup of this legislation which simply 
asked for a report on the implementation of the amendments made by the 
FISA Amendments Act of 2008. My amendment simply requested that the 
report include an assessment of the impact of Section 702 of the FISA 
on the privacy of persons inside the United States. Even with court-
approved targeting and minimization procedures in place, the government 
can and does intercept the communications of U.S. citizens.
  It does so without a particularized warrant or a showing of probable 
cause. This approach to electronic surveillance raises concerns under 
the Fourth Amendment, which prohibits unreasonable searches, 
warrantless eavesdropping, and the use of ``general warrants.''
  The Fourth Amendment to the U.S. Constitution provides a right ``of 
the people to be secure in their persons, houses, papers, and effects, 
against unreasonable searches and seizures.'' Many of the government 
activities discussed in this report have the potential to constitute a 
search as that term is defined in Fourth Amendment jurisprudence.
  Namely, government action constitutes a search when it intrudes upon 
a person's ``reasonable expectation of privacy,'' which requires both 
that an ``individual manifested a subjective expectation of privacy in 
the searched object'' and that ``society is willing to recognize that 
expectation as reasonable.''
  The Fourth Amendment and its protections go back to our founding--the 
ability of the American Patriots to resist unwarranted searches and 
seizures by the British is inculcated in the American psyche.
  Thus, the Fourth Amendment ultimately limits the government's ability 
to conduct a range of activities, such as physical searches of homes or 
offices and listening to phone conversations. As a general rule, the 
Fourth Amendment requires the government to demonstrate ``probable 
cause'' and obtain a warrant (unless a recognized warrant exception 
applies) before conducting a search.
  This rule applies most clearly in criminal investigations. For 
example, an officer conducting a criminal investigation typically may 
not search a person's belongings without first obtaining a warrant that 
describes the property for which sufficient evidence justifies a 
search.
  The extent to which the Fourth Amendment warrant requirement applies 
to the government's collection of information for intelligence 
gathering and other purposes unrelated to criminal investigations is 
unclear. Although the surveillance of wire or oral communications for 
criminal law enforcement purposes was held to be subject to the warrant 
requirement of the Fourth Amendment in 1967, neither the Supreme Court 
nor Congress sought to regulate the use of such surveillance for 
national security purposes at that time.
  Several years later, the Supreme Court invalidated warrantless 
electronic surveillance of domestic organizations for national security 
purposes, but indicated that its conclusion might differ if the 
electronic surveillance targeted foreign powers or their agents. A 
lower court has since upheld the statutory scheme governing the 
gathering of foreign intelligence information against a Fourth 
Amendment challenge, despite an assumption that orders issued pursuant 
to the statute might not constitute ``warrants'' for Fourth Amendment 
purposes.
  The Supreme Court has not yet directly addressed the issue. However, 
even if the warrant requirement was found not to apply to searches for 
foreign intelligence or national security purposes, such searches would 
presumably be subject to the general Fourth Amendment 
``reasonableness'' test.
  In the context of national security, the contours of the Fourth 
Amendment are necessarily narrowed but not abandoned altogether. The 
march toward a Big Brother State begins when the people's rights to 
privacy and to be free from surveillance are surrendered in toto. All 
we have to do is look at the recent Jones decision which concerned a 
purely domestic case in which law enforcement took advantage of high-
tech tools to follow a suspected drug dealer. A conservative Roberts 
Court voted 9-0 to invalidate this search.
  It is rare for liberal Democrats and conservative Republicans to 
agree on much of anything these days, but I am sure that many of my 
colleagues on the other side would find untargeted procedures under 
FISA unlawful and thereby unconstitutional. Homeland security is not a 
Democratic or a Republican issue, it is not a House or Senate issue; it 
is an issue for all Americans--all of us need to be secure in our 
homes, secure in our thoughts, and secure in our communications.
  It is widely known that the Obama Administration would like a clean, 
five year reauthorization of the FISA Amendments Act, consistent with 
the approach taken by the Senate Select Committee on Intelligence this 
spring. I would also note that there were two voices of dissent in the 
Senate committee's proceedings, Senators Wyden and Udall who have been 
champions of national security, privacy, and civil liberties--which are 
not mutually exclusive.
  The FISA Amendments Act of 2008 was designed to provide critically 
important authority for the U.S. Intelligence Community to acquire 
foreign intelligence information by targeting foreign persons 
reasonably believed to be outside of the United States. However, our 
experts now tell us that there are serious issues with targeting 
procedures, disclosure of basic information and there is a lack of 
strong rules on how the information gathered can be used.
  ``Reverse targeting,'' a concept well known to members of this 
Committee but not so well understood by those less steeped in the 
arcana of electronic surveillance, 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, had with the ill-conceived and now expired Protect 
America Act of 2007, was that the understandable temptation of national 
security agencies to engage in reverse targeting is difficult to resist 
in the absence of strong safeguards to prevent such unauthorized and 
blanket snooping.
  Although Section 1881 of the FISA Amendments Act statutorily forbids 
such reverse targeting, it is a lingering concern of many civil 
libertarians which I share.
  No doubt there are instances where it may be necessary to target 
persons within and outside the United States in order to address 
threats but Congress has made it clear that these exigencies must be 
subject to review at some point and time.
  On the issue of targeting procedures, they were designed to ensure 
that only people reasonably believed to be outside of the U.S. would be 
targeted. However, in reality quite the contrary has taken place. There 
has been bulk collection of information without any targets whatsoever. 
Ensure transparency by conducting as much public oversight as possible, 
including releasing basic information about the program, such as the 
type of information collected and how many Americans and people in the 
U.S. it has affected.
  It is also critical that Foreign Intelligence Surveillance Court 
opinions and administration interpretations of its authority to collect 
and use information under the FISA Amendment Act (FAA) become part of 
the public record and congressional debate.
  On the issue of disclosure, there has been a lack of transparency on 
what type of information is being gathered, who is being picked up and 
what rights of Americans have been violated.
  We must strike a balance between what constitutes ``classified'' 
information, and other compelling facts, disclosure of which do not 
threaten national security.
  On the issue of rules, there has been a lack of rules that clearly 
define how the information is being used. The key is to amend the FISA 
Amendment Act to ensure that information collected under those programs 
can be used only in the narrowest of circumstances. The FAA's 
minimization procedures should be amended to ensure that this foreign 
intelligence warrantless surveillance program doesn't allow information 
to be repurposed for other government uses.
  I understand that there must be a way for the intelligence community 
to gather vast amounts of information in a manner that makes sense. 
However, after carefully reviewing these proposals but suffice to say, 
I am still disturbed about certain aspects of the FISA Amendments of 
2008. This Act was not designed for an overreach of power. It was 
designed to for the intelligence community to conduct meaningful 
information overseas.
  Nearly two centuries ago, Alexis DeTocqueville, who remains the most 
astute student of American democracy, observed that the reason 
democracies invariably prevail in any martial conflict is because 
democracy is the governmental form that best rewards and encourages 
those traits that are indispensable to martial success: initiative, 
innovation, resourcefulness, and courage.
  Thus, the way forward to victory in the War on Terror is for this 
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. It is not easy for me or any 
Member of this House to go against the President's wishes on a matter 
of national security but I am convinced that more debate is necessary, 
and more consideration of what the FISA Amendments mean to national 
security and civil liberties.

[[Page H5895]]

  We are in the throes of a national election for which the candidates 
have labored for over two years and the American people have seen, for 
better or worse, what they are about. Why so long: because that is 
Democracy. And civil liberties, Mr. Speaker, are the essence of the 
stew of our American Democracy.
  I hope that Congress can maintain our oversight function to ensure 
that law enforcement is well aware of their limitations of surveillance 
balanced by a strong commitment to protecting this great nation from 
future harm, and limiting the reauthorization to 2015.
  Mr. SMITH of Texas. Mr. Speaker, I yield 4 minutes to the gentleman 
from South Carolina (Mr. Gowdy), who is a particularly active member of 
the Judiciary Committee.
  Mr. GOWDY. Mr. Chairman, I want to thank you for your leadership on 
this and a host of other issues on the Judiciary Committee.
  Mr. Speaker, this week has provided tragic reminders that the world 
is a dangerous place. We are targets even from people we have helped in 
the past--with lethal consequences because we represent freedom, 
liberty and tolerance even among those with whom we disagree.
  Each of us is asked when we go back home to our districts, Can 
Congress agree on anything? Is there anything that rises above politics 
anymore? Many of us would like to answer yes. We'd like to tell the 
people we work for that, yes, on issues of national security and 
protecting this country, yes, we can come together. We are capable of 
putting down talking points and red herrings and straw arguments and of 
picking up something called responsibility.
  To say that this reauthorization has bipartisan support is an 
understatement. This bill passed unanimously in the House Intelligence 
Committee. For those in shock back home, Mr. Speaker, I'm going to 
repeat that: this bill passed unanimously. All Democrats, all 
Republicans on the House Intelligence Committee with access to the most 
information, not a single ``no'' vote.
  President Bush supported this. Mr. Obama supports this. National 
security experts support this. Law enforcement officials support it. 
Our colleagues who served in the FBI and those who are Federal 
prosecutors and in the military support it. The Democrat-led House 
passed this bill in 2008 with former Speaker Pelosi giving a glowing 
speech extolling the virtues of the underlying bill and excoriating her 
colleagues about the necessity of passing.
  All of this happened, Mr. Speaker, because intelligence is the 
lifeblood of our ability to defend ourselves. It happened because this 
bill has nothing to do with Americans on American soil. It passed 
because this provides protections for Americans who are traveling 
abroad. It passed because there is ample oversight. It passed because 
it has the needed checks and balances between the legislative branch 
and the executive branch and the judicial branch.
  So why the opposition? How can you explain supporting something when 
Ms. Pelosi had the gavel, but you can't support it when Mr. Boehner has 
the gavel?
  What I want to do, Mr. Speaker, just for today is: let's put down the 
red herrings, and let's put down the straw arguments and the 
misrepresentations. This bill doesn't implicate the Bill of Rights 
anymore than it implicates any other part of our Constitution--unless 
you think that foreign nationals who are on foreign land fall within 
the protections of the United States Constitution, and that is an 
absurd argument.

                              {time}  1550

  Foreign nationals in foreign lands, do they have the right to vote? 
Do they assert states' rights under the 10th Amendment? Can they claim 
cruel and unusual punishment? Go to Iran. If you're an Iranian, you go 
to Iran and assert your Fifth Amendment right to Miranda or your Sixth 
Amendment right to counsel and see what happens. Yet we're to believe 
that the Fourth Amendment applies to the entire world? It's absurd.
  Mr. Speaker, I'm almost out of time, but I do want to say from the 
bottom of my heart--what's left of it after having been a prosecutor 
for 16 years--I want to say this.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. SMITH of Texas. Mr. Speaker, I yield an additional 1 minute to 
the gentleman.
  Mr. GOWDY. I believe you were with us, Mr. Speaker. I believe all of 
our colleagues were with us on the steps of the Capitol. We came 
together to remember 9/11 and what we lost and what we still grieve for 
as a Nation, Mr. Speaker, what we found as a Nation in the aftermath of 
9/11. Republicans stood with Democrats on this, the steps of the 
people's House, and conservatives stood with progressives and 
moderates, and libertarians beside us. We were just Americans. That was 
enough on Tuesday. We were united. We were just Americans.
  Even for just one fleeting moment, in our desire to honor, protect, 
and defend, if we can come together, Mr. Speaker, to remember 9/11, 
surely we can come together to prevent another one.
  I ask my colleagues to support this bill.
  Mr. CONYERS. Mr. Speaker, no one respects the gentleman from South 
Carolina more than I do, but I should advise him that it is incorrect 
to say that members of the Intelligence Committee didn't support my 
amendment to shorten the sunset period. I have the names of two of them 
in front of me right now. I also would advise him that the authority 
unquestionably affects United States persons, citizens on American 
soil, that their communications are regularly intercepted, and that 
would, I think, allow him to join in with some of the rationale for the 
resistance to this measure as it appears right now.
  It's in that spirit that I point out to him that, with the lack of 
transparency and no oversight, the length of the measure is too long, 
and that this is being brought up under a closed rule was part of our 
objections. I think they're in good faith.
  Mr. Speaker, I now yield 2 minutes to a distinguished member of the 
Judiciary Committee, the gentleman from Georgia (Mr. Johnson).
  Mr. JOHNSON of Georgia. Thank you, Mr. Ranking Member.
  Mr. Speaker, I rise in opposition to H.R. 5949, which, without 
benefit of one oversight hearing by the full Judiciary Committee during 
the 112th Congress, wants to, for 5 long years, reauthorize expiring 
provisions of the Foreign Intelligence Surveillance Act without 
important modifications that are necessary to safeguard the civil 
liberties and the privacy rights of American citizens.
  Although H.R. 5949 is designed to defend the United States against 
international terrorism and other threats, it has been reported that 
FISA has resulted in the illegal surveillance of untold numbers of 
American citizens through data accumulation, also known as 
overcollection of voice and data communications. Overcollection occurs 
when the voice and data of American citizens is collected incidentally 
to the collection of communications of foreigners.
  What happens to the data and voice communications of Americans that 
is incidentally collected without a warrant? What happens to it? What 
happens to the private voice and data of Americans when it's minimized? 
These are critical questions, and they deserve critical answers. But as 
I've said, we've not had one oversight hearing in the full Judiciary 
Committee on this issue. We've just simply had a markup of this 
reauthorization bill.
  These, and other questions, deserve answers. The Fourth Amendment 
would ordinarily protect the communications of American citizens. It 
prohibits unreasonable and warrantless searches and seizures of the 
communications of American citizens, including warrantless 
eavesdropping and snooping. But under H.R. 5949, no warrant or showing 
of probable cause exists where information is overcollected.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CONYERS. I yield an additional 30 seconds to the gentleman from 
Georgia.
  Mr. JOHNSON of Georgia. In 2009, The New York Times described the 
practice of overcollection as significant and systemic.
  Any counterterrorism measure must have a solid constitutional footing 
and respect the privacy and the civil liberties of American citizens. 
For that reason, I urge my colleagues to vote against this 5-year 
reauthorization.

[[Page H5896]]

  Mr. SMITH of Texas. Mr. Speaker, we're prepared to close on this 
side, so I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I'm pleased to yield 3 minutes to my good 
friend from Ohio, Dennis Kucinich.
  Mr. KUCINICH. Thank you very much, Mr. Conyers.
  To my friends on the other side of the aisle who have expressed 
passion about passing this, you're good Americans, and I respect your 
position. I respectfully disagree.
  We have to defend our country from attacks on the outside. I voted, 
along with other Members of this Congress, right after 9/11, for the 
United States to defend itself. But it's equally important that we not 
lose our freedoms and our constitutional protections while we're 
engaged in that defense. We take an oath not only to defend the 
Constitution, but we have to keep in mind that that oath and that 
Constitution is really part of America's first line of defense.
  Think of what it's like to make a phone call, any one of us right 
now. We make a phone call--even from this Capitol--to call a friend 
overseas, start talking about matters relating to what's happening in 
America, what's happening in the world. The way this law is written, 
without changes, those phone calls could be intercepted. They cannot 
only be intercepted, but they can be downloaded, transcribed, and 
stored for future use by the government. I have a problem with that. 
It's a great concern. What happens is that everyone then becomes 
suspect when Big Brother is listening.
  I don't think that government should have the right to listen in to 
people's phone calls unless there's a warrant. You have to have 
probable cause. That's what the Fourth Amendment is about. This bill 
doesn't have those protections. It extends government's authority to 
conduct surveillance of persons reasonably believed to be outside the 
United States for 5 years, and there is a blanket extension, which is 
an abdication of Congress' constitutional obligation to protect and 
defend the Constitution and to protect the civil liberties of all 
Americans.
  Given the information we know about our government's past abuse of 
surveillance authorities, if we pass this bill without any changes to 
ensure adequate congressional oversight and transparency, we're losing 
an opportunity.
  Since the amended FISA Act passed in 2008, the government has 
released very little information on how it uses the powers granted 
under this act. As the Electronic Frontier Foundation recently pointed 
out, nobody in the government is willing to answer questions about how 
many Americans' phone calls or emails have been or are being collected 
and read without a warrant under the authority of the FISA Amendments 
Act. So Big Brother is not accountable. Even more disturbing is that 
it's well known that the government has violated the FISA Amendments 
Act, despite the broad surveillance authorities it provides the 
government.
  A freedom of information request by the ACLU revealed that violations 
of the FISA Amendments Act and the Constitution continue to occur on a 
regular basis, until at least March 2010.

                              {time}  1600

  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CONYERS. I yield the gentleman an additional 30 seconds.
  Mr. KUCINICH. According to the ACLU, the law is written so broadly 
that a phone call by a U.S. citizen to a U.S. citizen overseas 
discussing general foreign affairs could be listened in on. Section 702 
of this act allows the government to intercept the communication of any 
U.S. citizen absent probable cause, in subversion of their Fourth 
Amendment rights. So Big Brother is listening.
  There's no doubt that Congress is abdicating its responsibility when 
it passes a blanket extension of this bill without knowing how many 
Americans have been affected by FISA or the government's interpretation 
of the law. Without vital civil liberties safeguards and a minimum of 
transparency, an extension should be rejected.
  Big Brother is not accountable. Let's vote against Big Brother. Let's 
vote to protect the Fourth Amendment.

                        The Constitution Project


               report on the fisa amendments act of 2008

       Accordingly, we, the undersigned members of The 
     Constitution Project's Liberty and Security Committee, 
     recommend:
       I. Increased Judicial Review of Surveillance 
     Authorizations: The FAA should be amended to require more 
     robust judicial review by the FISC to authorize programmatic 
     surveillance and ensure that it is appropriately focused on 
     foreign intelligence. Specifically:
       (a.) Congress should restore the requirement that foreign 
     intelligence be the primary purpose of the programmatic 
     surveillance.
       (b.) When seeking approval for programmatic surveillance, 
     the government should be required to (1) explain the foreign 
     intelligence purpose of the proposed surveillance, (2) define 
     the scope of planned interceptions, and (3) provide a risk 
     assessment and an estimate of reasonably anticipated 
     interceptions of the communications of U.S. persons and 
     individuals located within the United States. The 
     surveillance should only be permitted after the FISC has 
     thoroughly evaluated these submissions to ensure that 
     surveillance is appropriately designed to acquire foreign 
     intelligence information from legitimate targets without 
     interfering with the privacy rights of U.S. persons and 
     individuals located within the United States.
       (c.) Additionally, the government should be required to 
     develop and submit to the FISC procedures for determining 
     when an acquisition may be expected to collect communications 
     to or from the United States. Then, in cases where the 
     planned surveillance may reasonably be expected to intercept 
     communications to or from a person reasonably believed to be 
     in the United States, the government should be required to 
     obtain a FISA warrant under pre-FAA standards.
       2. Inclusion of Warrant Requirements and Other Safeguards 
     for Post-Collection Use of Information: The FAA should be 
     amended to require that the government obtain a warrant from 
     the FISC before searching collected communications for 
     information on a specific U.S. person, decrypting the 
     identity of a specific U.S. person party to a conversation, 
     or reviewing communications reasonably believed to be to or 
     from the United States. As required under the pre-FAA version 
     of FISA, the warrant should be based upon a showing of 
     probable cause to believe that the target is an agent of a 
     foreign power or has committed a crime, and that evidence of 
     the crime will be found and must name its target(s) with 
     particularity. Moreover, Congress should ensure that 
     collected information is being properly used for foreign 
     intelligence purposes, including at the very least a 
     requirement that authorities obtain a warrant before using 
     data for law enforcement purposes. Finally, Congress should 
     amend the FAA to require more stringent procedures for 
     minimization, including periodic, ongoing FISC review of the 
     implementation and efficacy of such procedures.
       3. Increased Reporting and Oversight: More information 
     about the intelligence community's use of the FAA should be 
     provided to Congress and the public. Before reauthorizing the 
     FAA, Congress should demand and review detailed information 
     regarding the operation of the FAA surveillance program to 
     date, including the extent and scope of interceptions of the 
     communications of U.S. persons and individuals located within 
     the United States. Further, the Inspector General of the 
     Intelligence Community should be required to audit these 
     surveillance programs and issue annual reports to Congress 
     regarding how government surveillance has been conducted. In 
     particular, these reports should include: statistics 
     regarding how many U.S. persons' communications have been 
     intercepted by the government; aggregate statistics on the 
     number of intercepted communications in total, and the number 
     of intercepted communications to or from the United States or 
     involving any U.S. person; an analysis of the performance of 
     the government's targeting and minimization procedures; and 
     an explanation of how collected information has been used, 
     including the number of times the information has been used 
     for law enforcement rather than foreign intelligence 
     purposes. These reports should also be provided in an 
     unclassified form released to the public. Additionally, as 
     much as practicable, more information on the FAA should be 
     released to the public, including important decisions by the 
     FISC and Foreign Intelligence Surveillance Court of Review, 
     redacted as necessary.

  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the bill before us today extends the expiration date of 
the FISA Amendments Act of 2008 from December 31, 2012 to December 31, 
2017. I oppose this unwarranted long term extension because neither 
Congress nor the public yet have an adequate understanding of the 
impact this law has had on the privacy of American citizens.
  The heart of the FISA Amendments Act is section 702, which authorizes 
the government to intercept the communications of people who are 
reasonably believed to be foreign persons outside of the U.S. On its 
face, the statute includes protections for American citizens who may be 
on the other end of these communications.
  But section 702 does not require the government to obtain a warrant--
and without more information about how the executive

[[Page H5897]]

branch uses this authority, we cannot confirm that the privacy of U.S. 
citizens is adequately protected.
  These concerns are more than theoretical. In 2009, the New York Times 
reported that the NSA had engaged in the ``overcollection'' of American 
communications in situations not permitted by law. The government 
assures us that this problem was an accident and has been corrected--
but the report does not inspire confidence in the safeguards we have 
put in place.
  More recently, in a July 26, 2011, letter to Senators Ron Wyden (D-
OR) and Mark Udall (D-CO), the Office of the Director of National 
Intelligence stated that it is ``not reasonably possible'' to determine 
how many U.S. persons have had their communications intercepted under 
this law. Even if it is difficult to state an exact figure, it is hard 
to believe that the Director of National Intelligence cannot even 
guess. The Inspector General of the Intelligence Community didn't fare 
any better, and simply deferred to the non-answer provided earlier by 
the ODNI.
  The public deserves better--and it is our responsibility to demand 
more information in the public record if the government will not 
provide it.
  My colleagues prepared a series of amendments that would have 
addressed many of these basic oversight needs--without any risk to 
national security or the integrity of the underlying programs--but 
under this closed rule, we are not permitted to even debate these 
moderate changes to the bill on the floor. What is so dangerous about 
increased oversight that we cannot even debate an amendment?
  If we require the government to provide us with unclassified reports, 
public summaries of key FISA court opinions, and an honest accounting 
of the number of Americans who have been affected by these programs, we 
will have gone a long way towards the responsible exercise of our 
oversight role.
  And even if we cannot support these modest changes, we ought to amend 
this bill to provide for a shorter sunset. Meaningful oversight means 
revisiting these authorities before the winter of 2017. We cannot allow 
an entire presidential administration to pass before we discuss these 
authorities again--in the 115th Congress.
  My amendment would have had the added benefit of linking this sunset 
to the three expiring provisions created by the USA PATRIOT Act. It 
would be to our benefit to consider the most controversial aspects of 
FISA all at once, instead of piecemeal over the course of the next 
decade. But under this closed process on the floor today, the House has 
been denied the opportunity to even consider this moderate change to 
the bill.
  In conclusion, the government can and must do a better job of 
responding to our questions about privacy and other civil liberties. It 
can do so without risk to national security.
  I have no doubt that these expiring authorities are important to the 
executive branch, but we should not let this opportunity pass without 
demanding reasonable, meaningful, and public oversight of a highly 
controversial law.
  I urge my colleagues to vote ``no'' on H.R. 5949.
  I yield the balance of my time to the gentleman from Oregon (Mr. 
Blumenauer).
  Mr. BLUMENAUER. I thank Ranking Member Conyers for his courtesy.
  For over a decade, I have deeply been concerned about the potential 
overreach of wiretapping legislation and efforts at the NSA. I have 
voted repeatedly in the past against unreasonable expansion of any 
administration's ability to intrude in the lives of unknowing and 
innocent Americans, and I will do so again today.
  I remain confident that the dedicated members of the intelligence 
community do not need to erode the rights of Americans in order to 
protect them. Any apparent gains in security that may be achieved are 
modest and more than outweighed by longer-term potential loss of civil 
liberties and oversight, the sense of security that each American 
deserves. I'm troubled by the implications for our Fourth Amendment 
rights, the absence of meaningful court review, and the risk to 
American liberties that stem from the FISA Amendments Act.
  Frankly I see no reason to rush into voting on a bill so deficient. 
The American people would be better served if we continued the debate 
and the examination, had thorough answers from NSA, and took up 
reauthorization based on a more complete review and process.
  In fact, I think as we stand here today on the floor, not even the 
NSA knows the extent to which the FISA Amendment Act may potentially 
have been abused. The right approach would be refining this bill and 
more broadly taking a closer look at what over the last decade has 
become an intelligence community that is, frankly, some feel, growing 
out of control.
  It's been over 11 years since 9/11. We ought to be able to get this 
right. We shouldn't be rushed into doing something that has significant 
long-term implications for every American.
  You know, take a deep breath and take a step back. There are over 4.2 
million Americans who hold a security clearance. That's more than the 
entire State of Oregon's population, and let's throw in the city of 
Seattle for good measure. Almost half of them hold Top Secret security 
clearances, more than people who reside in Maine or Idaho. When you've 
got those millions of people, you have an entity that is cumbersome, 
potential for abuse, and, frankly, potential to be infiltrated or have 
mistakes.
  Think about it: 9/11 occurred in part not because we didn't have 
information. Remember the memo on Bush's desk warning of a potential 
attack from bin Laden?
  What we are doing at the same time we are eroding American rights? 
We're piling on more and more and more information, and it's going to 
be extraordinarily difficult to sort through. We risk putting Americans 
in trouble.
  The SPEAKER pro tempore (Mr. Reed). The time of the gentleman has 
expired.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, the vote we cast on the FISA Amendments Act tonight will 
be one of the most important votes we cast in Congress, and it is 
appropriate we do so during the week of 9/11.
  The FISA Amendments Act will continue to allow us to conduct 
surveillance of terrorists, spies and others who would do us harm. A 
FISA court order is required if the target is a U.S. citizen, but not 
if the individual is outside of the United States and not a U.S. 
citizen.
  The FISA Amendments Act was first passed in 2008 overwhelmingly, and 
it expires at the end of December. This bill extends the law for 5 
years. The FISA Amendments Act is a top priority of the intelligence 
community. It was supported by the Bush administration in 2008 and is 
strongly endorsed by the Obama administration now. This is a bipartisan 
bill that enables us to vote to both neutralize threats to our national 
security and protect the civil liberties of American citizens.
  I urge my colleagues to support this bill, and I yield back the 
balance of my time.
  Mr. ROGERS of Michigan. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, I rise today in support of H.R. 5949, which would 
reauthorize the FISA, the Foreign Intelligence Surveillance Act 
Amendments Act of 2008, or FAA, as we refer to it, for 5 years.
  The FAA is currently set to expire at the end of the year. If that 
happens, the government will lose a critical tool for protecting 
Americans against foreign threats, including terrorists, and, as a 
result, will lose significant intelligence on these foreign targets. I 
want to emphasize, Mr. Speaker, foreign targets.
  We were all reminded yesterday, while looking back on the horrible 
events of 9/11, of the threat that we face from those seeking to do us 
harm. Let me reassure you that even though we have been able to disrupt 
numerous plots over the years, our enemies want to do just as much harm 
today as they did then, and they just want to do it as badly as they 
did even 11 years ago.
  The original FAA that is being reauthorized was sponsored by 
Representative Reyes in 2008, my Democrat predecessor, as chairman of 
the Intelligence Committee. It also reflected the work of then leader, 
Mr. Hoyer, to help develop the final product under the previous 
majority. I have been pleased to work in a collegial, bipartisan manner 
with my ranking member, Mr. Ruppersberger, on this clean 
reauthorization bill as well. In fact, the Intelligence Committee 
reported this bill out unanimously, which doesn't happen all that much 
around this place.
  The administration has also indicated to us that reauthorizing the 
FAA is its highest national security legislation priority, and on 
Tuesday issued a statement strongly supporting this bill. I hope we can 
all recognize this is

[[Page H5898]]

an issue that is being driven by our national security needs and not by 
politics.
  A few key points on the FAA. First, if we let this authority expire, 
we will lose a critical intelligence collection tool against foreigners 
on foreign soil.

                              {time}  1610

  If that happens, we lose information on the plans and identities of 
terrorists, information about the functioning of terrorist groups like 
al Qaeda and others, information on the intentions and capabilities of 
weapons proliferators, information on potential cyberthreats to the 
United States and other critical intelligence about foreign adversaries 
that threaten the United States of America.
  Second, it is important to remember that this authority is focused on 
allowing the government to conduct intelligence collection targeting 
foreigners located outside of the United States--I'm going to say that 
again, Mr. Speaker, targeting foreigners located outside of the United 
States--and not on Americans located in the United States or anywhere 
else in the world.
  Third, the FAA is subject to a robust oversight structure, including 
Congress, and I can assure you that the Intelligence Committee takes 
this responsibility extremely seriously. We have had numerous hearings, 
Member briefings, and staff briefings since the passage of FAA in 2008. 
Before the government can collect any intelligence under the FISA 
Amendments Act, a Federal judge must approve the government's 
surveillance process, including the targeting and minimization 
procedures required under the law.
  One final point, in addition to the primary authority in FAA to 
target foreigners located abroad, it actually enhanced the civil 
liberties protections for Americans by requiring a court order to 
target an American for collection outside of the United States. Before 
2008, the government only needed the Attorney General for approval. If 
this law expires, so do these enhanced civil liberties protections.
  Mr. Speaker, contrary to what some may say, FAA is not about domestic 
surveillance and it does not authorize a sweeping dragnet of collecting 
on American communications. This is about foreigners on foreign soil. 
It is about giving our intelligence professionals the tools they need 
to quickly and effectively intercept the communications of those 
outside the United States who seek to do us harm.
  Let's not forget the nature of the threat that, almost 11 years ago 
to the day, took so many lives in such a horrific way. And the examples 
that we see just yesterday of the ongoing target of U.S. civilians, if 
they're in the United States or they're in places like Libya, continues 
to be a threat to the personal safety of those we ask to stand in 
harm's way and protect and promote the values of the United States.
  This is a critical piece of legislation supported by both parties and 
the President of the United States. Mr. Speaker, I would urge all of 
our colleagues here to stand united in the defense of the United States 
and support H.R. 5949.
  I reserve the balance of my time.
  Mr. RUPPERSBERGER. Mr. Speaker, I yield myself such time as I may 
consume.
  I rise today in favor of the FISA Amendments Act, which is due to 
expire at the end of this year.
  When Chairman Rogers and I took over the leadership of the House 
Permanent Select Committee on Intelligence, we made a commitment to 
work together to ensure the intelligence community has the authorities 
it needs to effectively protect our country while also protecting the 
privacy of Americans. I believe we must reauthorize this critical piece 
of legislation to keep America and her citizens safe. The FISA 
Amendments Act allows the government to gain important intelligence 
about terrorists, cyberthreats, weapons of mass destruction, and 
nuclear weapons that threaten Americans and U.S. interests.

  There is a misconception out there that this act permits the 
surveillance of Americans without a court order. The bill prohibits the 
targeting of American citizens without a court order, no matter where 
they're located in the world.
  The FISA Amendments Act gives the U.S. Government the authority to 
collect intelligence information about foreigners located outside of 
the United States. The FISA Amendments Act is subject to aggressive 
oversight by Congress and the executive branch.
  There was an issue in the hearing before the Judiciary Committee 
about the issue of oversight. In this Congress alone, the House 
Intelligence Committee has held multiple hearings, briefings, and more 
than a dozen meetings concerning FISA. In addition, every 60 days the 
Department of Justice and the Director of National Intelligence conduct 
detailed onsite reviews to ensure compliance with the provisions of the 
act.
  This is a bipartisan bill that passed out of the House Intelligence 
Committee by a unanimous vote of 17-0. I understand some Democrats 
would like a 3-year extension of the FISA Amendments Act, some 
Republicans requested a 9-year extension. The administration asked for 
a 5-year extension to take Presidential-year politics out of the 
process while providing consistency to the intelligence community. I 
support the President's request for a 5-year extension.
  Without reauthorization, this critical tool would be lost, putting 
our Nation at severe risk. We would not be able to obtain the foreign 
intelligence necessary to prevent terrorist plots and financial 
support. I believe the act is critical to protecting our Nation while 
protecting our Americans' constitutional rights and privacy. I urge my 
colleagues to support this measure.
  I reserve the balance of my time.
  Mr. ROGERS of Michigan. I yield 2 minutes to a friend of mine, the 
gentleman from California (Mr. Thompson).
  Mr. THOMPSON of California. I thank the chairman for yielding time to 
me.
  Mr. Speaker, I'm one of those Democrats that the ranking member 
talked about that would prefer a 3-year extension of this measure, but 
I'm going to vote for H.R. 5949, the FISA Amendments Act 
Reauthorization Act of 2012, also known as the FAA. I support this 
legislation because it protects our security, preserves our freedom, 
and has proven to respect our civil liberties in the process.
  In 2008, many of us were rightly concerned about this program being 
created and used as a back door for collecting information on law-
abiding Americans. I voted against the FAA in 2008, in part because of 
these civil liberty concerns. However, as a member of the House 
Intelligence Committee, I believe the abuses that we feared have just 
not materialized.
  But let me be clear, and this and future administrations are being 
given fair warning. My colleagues and I on the House Intelligence 
Committee will continue to receive reports on FISA information 
collection. These reports must continue to be detailed and specific. If 
there are any abuses or problems stemming from the application of this 
program, I'm certain that this Congress will move swiftly to correct 
them. So far, the application of the FAA has gained our trust, but we 
will continue to verify how the FAA is being used. Trust, but verify.
  Mr. Speaker, the FAA provides the tools we need to collect vital 
counterterrorism information in foreign intelligence. I will vote in 
favor of H.R. 5949, the FISA Amendments Act.
  Mr. ROGERS of Michigan. I reserve the balance of my time.
  Mr. RUPPERSBERGER. Mr. Speaker, I yield 1 minute to the gentlelady 
from Illinois (Ms. Schakowsky).
  Ms. SCHAKOWSKY. Mr. Speaker, I rise today in opposition to this FISA 
legislation. I do want to thank my ranking member for yielding to me, 
despite our difference of opinion.
  As a member of the Intelligence Committee, I take the threat of 
terrorism very seriously, but I believe we are fully capable of 
protecting our security and safeguarding our precious civil liberties. 
This law authorizes the government to collect mass electronic 
communications coming into and going out of the United States so long 
as no U.S. person in the United States is intentionally targeted. Yet 
in April 2009, The New York Times reported that the National Security 
Agency ``intercepted private email messages and phone calls of 
Americans on a scale that went beyond the broad legal limits 
established by Congress.''

[[Page H5899]]

  Shouldn't our government be required to disclose more about the 
extent and nature of the surveillance? Is this an authority that should 
be extended until 2017? Should we at least be able to consider an 
amendment to reexamine this law in 2013? But no amendments are allowed 
today.
  I urge a ``no'' vote.

                              {time}  1620

  Mr. ROGERS of Michigan. Mr. Speaker, I yield myself such time as I 
might consume.
  It's just important to remember that the due process protections of 
the United States are alive and well here. This is one of those 
programs that has an inordinate amount of oversight to make sure that 
we are not targeting Americans. Not only does the committee 
participate, but the Department of Justice has a separate review. There 
are strong internal reviews.
  In the odd case where an American is intercepted, there are very 
strict procedures on how to destroy that information and correct that 
problem, and it has not happened, hardly frequently at all is the good 
news, which is why I think there is such bipartisan and strong support 
of our effort again to collect on foreigners who are outside of the 
United States, incredibly important.
  I continue to reserve the balance of my time.
  Mr. RUPPERSBERGER. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from California (Mr. Schiff).
  Mr. SCHIFF. I thank the gentleman for yielding, and I rise in support 
of the FISA Amendments Act Reauthorization Act.
  This bill reauthorizes intelligence gathering capabilities that are 
essential to our national security while also protecting the civil 
liberties of Americans.
  The recent events in Libya, Egypt, and elsewhere should serve to 
remind us all that there remain forces around the world that are 
determined to kill Americans, injure our interests, and jeopardize our 
freedoms.
  The FAA allows us to obtain critical information about terrorist 
organizations, nuclear proliferation, and a host of other dangers. 
These authorities have produced intelligence that's vital to defending 
the Nation against international terrorism and other threats, which is 
why Attorney General Holder and DNI Clapper have called reauthorizing 
the FAA their top legislative priority.
  This bill does not authorize spying on Americans. To the contrary, 
the 2008 FISA Amendments Act ensured that no American, whether within 
the United States or overseas, would come under surveillance without a 
court order and a finding of probable cause.
  The authorities provided are narrowly tailored to the purpose of 
protecting the United States from those who would harm us, and I urge 
an ``aye'' vote.
  Mr. ROGERS of Michigan. Mr. Speaker, I have no further speakers. I am 
going to continue to reserve and allow the gentleman from Maryland to 
close.
  Mr. RUPPERSBERGER. Mr. Speaker, how much time is remaining?
  The SPEAKER pro tempore. The gentleman from Maryland has 5 minutes 
remaining, and the gentleman from Michigan has 2 minutes remaining.
  Mr. RUPPERSBERGER. I yield myself such time as I may consume.
  Mr. Speaker, there's been talk about the FISA Amendments Act as a 
backdoor collection on Americans and does not sufficiently protect 
civil liberties. This is not the case. We are all Americans. We are 
Members of Congress. We care about our country. We care about our 
Constitution, and we care about our privacy and our civil liberties.
  Now, the FISA Amendments Act of 2008 actually expands the protections 
of Americans' civil liberties and privacy interests. Before the FISA 
Amendments Act in 2008, which became law then, the government needed 
only the Attorney General's authorization to target an American. 
Because of the FISA Amendments Act, if the government allows for 
surveillance of an American, that American must be overseas and the 
government must have a FISA court order if they do target an American 
anywhere in the world. The civil liberties of Americans are better 
protected than before this act became law in 2008.
  Also, as far as oversight, and there have been allegations of not 
proper oversight. I understand the argument, and I don't disagree with 
the argument about sunsets. Sunsets are good because they hold us 
accountable. We can see if there are any abuses, and we can deal with 
them when we have sunsets.
  However, the Department of Justice and the Director of National 
Intelligence file semi-annual reports with Congress as it relates to 
the FISA Act. These reports include information about compliance, 
targeting, and minimization on collections involving the parties that 
we're focused on.
  The Intelligence Committee staff has conducted dozens of meetings 
about the authorities under the FISA amendments. These meetings have 
addressed compliance, procedures, authorities, and specific collection.
  On the Intelligence Committee, we review, investigate, and debate the 
FISA Amendments Act. We maintain an ongoing dialogue with the 
intelligence community to ensure the law is being implemented in how it 
was intended.
  We, as Americans, need to know more about the threats that are out 
there. Our threats for cyberattacks are occurring as we speak right 
now. It's very dangerous. These attacks can affect our national 
security, our grid systems, our banking systems, our air traffic 
control systems. This bill, this amendment, is part of our protection 
in dealing with those major issues.

  I advise my colleague that I am ready to close, Mr. Speaker.
  Mr. ROGERS of Michigan. I reserve with the right to close.
  Mr. RUPPERSBERGER. Mr. Speaker, I yield, again, myself such time as I 
might consume.
  The FISA Amendments Act is the result of decades of work to modify a 
law so we can adapt with changing technology and evolving national 
security threats. The bill demonstrates what Democrats and Republicans 
can do when we work together in a bipartisan way. It is uniquely 
important to put partisanship aside when America's national security is 
at stake.
  We all have the same goal of keeping America safe from terrorist 
threats, whether on land or sea, in the air or with cyberspace. We also 
believe strongly, and this is very important, in the Constitution and 
the protections granted by our Founding Fathers.
  The FISA Amendments Act is an important tool that has successfully 
prevented terrorist attacks on American soil. I know it is critical to 
our intelligence community.
  I commend everyone who participated in this effort, especially the 
bipartisan leadership of Chairman Rogers and the other members of the 
Intelligence Committee on both sides of the aisle. I support this 
straight reauthorization which President Obama, our Commander in Chief, 
has said is ``vital to protect our Nation.''
  I will vote for the FISA Amendments Act Reauthorization Act of 2012, 
and I urge my colleagues to do the same.
  I yield back the balance of my time.
  Mr. ROGERS of Michigan. Mr. Speaker, I want to thank my ranking 
member, Mr. Ruppersberger, for the fine bipartisan effort on this 
important national security issue.
  I think the people at home can rest assured that we have taken every 
precaution to protect our civil liberties, which we all cherish in this 
Nation, and still have the ability to collect on foreigners overseas 
seeking to harm this great country, and I want to thank you for your 
work and commend the President for his letter of support of our 
bipartisan effort on this important national security issue.
  With that, Mr. Speaker, I yield back the balance of my time.
  Mr. DINGELL. Mr. Speaker, I rise in opposition to H.R. 5949, the FISA 
Amendments Reauthorization Act, FAA. Matters of national security are 
of the utmost importance and we should ensure that the government has 
the necessary tools to keep America safe. Yet, we must always balance 
this with protecting the civil liberties of American citizens. 
Unfortunately, this legislation before us today fails this important 
test.
  I voted against this legislation when it was first passed in 2008 and 
I continue to have many of the same reservations and objections to the 
policies set forth by the FAA. I continue to be concerned that the 
Fourth Amendment rights of American citizens are not adequately 
protected by this legislation, which is of the utmost importance. 
Specifically, FAA makes an

[[Page H5900]]

end-run around the Foreign Intelligence Surveillance Court, FISC, by 
allowing the government to conduct surveillance without a FISC warrant. 
Such a broad exercise of power undermines our system of checks and 
balances and has grave implications for the protection of our 
constitutional rights. We should be enhancing the role of the FISC to 
ensure that the rights of American citizens are protected while the 
government collects intelligence to help defend our nation.
  Additionally, the five-year extension provided by this legislation 
will ensure that regardless of which candidate wins the presidency on 
November 6, their administration will have these powers for the length 
of their term. A shorter extension would allow Congress to conduct the 
proper oversight over the use of these authorities and to better 
examine whether such authorities are still necessary to ensure the 
protection of our citizens.
  Regardless of who is in the White House, it is the duty of this body 
to ensure that the power of the executive branch is not unfettered and 
that proper oversight is conducted. It is in this spirit that I cast my 
vote against this legislation today.
  Mr. PAUL. Mr. Speaker, I rise in strong opposition to the 
reauthorization of the 2008 FISA Amendments Act, as it violates the 
Fourth Amendment of our Constitution. Supporters of this 
reauthorization claim that the United States will be more vulnerable if 
the government is not allowed to monitor citizens without a warrant. I 
would argue that we are more vulnerable if we do allow the government 
to monitor Americans without a warrant. Nothing makes us more 
vulnerable than allowing the Constitution to be violated.
  Passage of this reauthorization will allow the government to listen 
in to our phone calls, read our personal correspondence, and monitor 
our activities without obtaining a warrant. Permission for surveillance 
obtained by a secret FISA court can cover broad categories of targets 
rather than specific individuals, as the Fourth Amendment requires. 
Americans who communicate with someone who is suspected of being 
affiliated with a target group can be monitored without a warrant. The 
only restriction is that Americans on U.S. soil are not to be the 
primary targets of the surveillance. That is hardly reassuring. U.S. 
intelligence agencies are not to target Americans on U.S. soil, but as 
we all know telephone conversations usually take place between two 
people. If on the other end of the international conversation is an 
American, his conversation is monitored, recorded, transcribed, and 
kept for future use.
  According to press reports earlier this summer, the Director of 
National Intelligence admitted to the Senate that ``on at least one 
occasion'' U.S. intelligence collection agencies violated the 
Constitutional prohibitions on unlawful search and seizure. Without 
possibility for oversight of the process and with the absence of 
transparency, we will never know just how many Americans have been 
wiretapped without warrants.
  Creating a big brother surveillance state here is no solution to 
threats that may exist from abroad. I urge my colleagues to reject 
these FISA amendments and return to the Constitution.
  The SPEAKER pro tempore. All time for debate on the bill has expired.
  Pursuant to House Resolution 773, the previous question is ordered on 
the bill, as amended.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. RUPPERSBERGER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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