[Congressional Record Volume 159, Number 108 (Thursday, July 25, 2013)]
[House]
[Pages H5081-H5083]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1315

  When you go down under subparagraph (b)(2) under each application 
under this section, it says:

       Shall include a statement of fact showing that there are 
     reasonable grounds to believe that the tangible things sought 
     are relevant to an authorized investigation, other than a 
     threat assessment, conducted in accordance with (a)(2) of 
     this section to obtain foreign intelligence information not 
     concerning a United States person or to protect against 
     international terrorism or clandestine intelligence 
     activities, such things being presumptively relevant to an 
     authorized investigation if the applicant shows in the 
     statement of facts that they pertain to (i) a foreign power 
     or an agent of a foreign power.

  Now, that gave me comfort. Okay. All right. If it pertains to a 
foreign power or to an agent of a foreign power, okay. That's not an 
American citizen, and if it is, there is certainly an agent for a 
foreign power:

       (ii) the activities of a suspected agent of a foreign power 
     who is the subject of an authorized investigation or (iii) an 
     individual in contact with or known to a suspected agent of a 
     foreign power who is the subject of such authorized 
     investigation.

  It talks about minimization procedures. Then under (c)(2), it gives 
this order, this direction, to a judge who may be asked to issue an 
order:

       An order under this subsection: (A) shall describe the 
     tangible things that are ordered to be produced with--and get 
     this--sufficient particularity to permit them to be fairly 
     identified.

  Now, that gave me comfort. The Foreign Intelligence Surveillance 
Court judges, who are judges nominated by the United States President 
and confirmed by the United States Senate, thoroughly investigated by 
the FBI, are the only people, when they're assigned to the FISA court, 
who could issue an order like this, and the law says that their orders 
have to be with sufficient particularity.
  We know from the law under the Constitution that, if you want to go 
after specific private information about people, you have to have a 
warrant, and that warrant has to be based on probable cause, and the 
probable cause must be established by a sworn statement, and there must 
be sufficient specificity so that we don't just have blanket orders to 
go get information.
  I know, when I was an assistant DA up in northeast Texas, that we had 
a deputy come in one time. It was the policy, if you wanted to get a 
warrant signed by the district judge, you needed to go through the DA's 
office first so that we could help you and make sure you had probable 
cause and make sure there was proper specificity. Bless his heart. He 
was a great gentleman, an older deputy, and he was always after this 
tiny, little community in our county.
  He said, I know they're smoking dope out there. I just know it. I've 
sat out there and surveilled their house. I haven't seen them with 
dope, but I know they've got it.
  So he came in one day, and he said, I've got them. I can get a 
warrant now.
  What have you got, Deputy?
  Well, you know our little convenience store out there in our 
community was broken into, and one of the things they stole was potato 
chips.
  Okay. So what does that have to do with a warrant to go after 
marijuana?
  Well, of the place I've been surveilling and watching, I found out 
absolutely, for sure, that they're having a party Friday night, and 
they're

[[Page H5082]]

going to have potato chips there. So all I need is a warrant to go look 
for potato chips, and while I'm there, I'll find the dope.
  I said, Is there anything identifiable on the potato chip packages 
that would allow you to determine that these were the potato chips 
stolen from the convenience store?
  He said, Well, no, no. These are just potato chips.
  Deputy, I'm sorry, but that's not sufficient specificity.
  I mean, I've known since law school, since I was a DA, since my years 
as a judge, and as a chief justice that you've got to have specificity. 
The Constitution requires it. So, basically, that's what this provision 
is requiring. You've got to describe with sufficient particularity that 
people can identify the specific items that you're demanding to be 
produced.
  That's why, when we all looked and saw in public information sources 
that a FISA Court judge had granted an application for a warrant for 
every phone call made by anybody in America, whether outside the U.S. 
or inside the U.S., I couldn't believe they'd find a judge who would 
sign that. I mean, sure, you might find some judge in some jurisdiction 
in that location, in that court, who didn't have to go to law school 
and who really didn't understand the Constitution, but the justices of 
the peace I know would know you've got to have some specificity here. 
You can't just come in and ask for everybody's phone records in the 
country.
  So I have to say about my friends on the far left of the political 
spectrum who were suspicious back when we were pushing--and being 
pushed, really--for an extension of the PATRIOT Act that they had 
concerns that somebody might come in and get library records without 
adequate probable cause. It turns out their concerns about library 
records didn't even come close to the danger that this act would pose 
for an administration that felt like it should have everybody's 
information.
  I've talked to people on both sides of the aisle--and this may be one 
of the few rare issues. My sense is that everybody truly wants the same 
thing, but when you look at what is being gathered, this was never, 
ever anticipated. I can't remember if it were publicly or privately in 
our conversations when we were discussing this extension of the PATRIOT 
Act, and when I was demanding sunset so we could still have some 
accountability and demand answers when we wanted them, but either 
privately or publicly, we were told, Look, we don't even have the 
capability--this was in 2005--to gather the data for every single phone 
call that's made by everybody in the United States, and even if we did, 
we would never do that.

  But anyway, that was one of those statements that was made either in 
private or in public, and that assuaged some of our concerns.
  The truth is, I just couldn't imagine a judge who had been nominated 
by any President--liberal, conservative, confirmed by the Senate, a 
judge who had obviously gone to law school--who would sign an order 
saying, Yeah, go get every phone call made by every person everywhere.
  I know the hearts of the people on both sides of the aisle who voted 
against and spoke against Justin Amash's amendment, and I know this is 
one of those issues--I can feel it, and I've talked to people on both 
sides of the aisle in depth and privately--where we really all want the 
same things here. We want to be safe, but we want to protect our 
liberty.
  It seems that those who have dealt directly with the intelligence 
agencies and information--the classified information--have said, We 
really do need this because you don't know how much trouble we're 
really in if we don't have this. This stuff is critical. We need this 
information.
  Unfortunately, it brings us back to other problems. One, for example, 
is: when you have open borders and when you know there are people 
coming in the country who want to harm us, hurt us, destroy our way of 
life, take away our liberties, then you need to, perhaps, give up some 
liberty in order to have security.
  I don't want to give up liberty. I don't think we should have to, but 
when you have open borders--as open as ours are right now--and when 
people want to be secure and safe more than anything else, people are 
going to give up the very liberty that so many people gave their lives 
for us to have.
  John Adams had that amazing quote. I don't have it verbatim, but it 
is in essence:

       If people in future generations give up liberty, then I 
     will regret from Heaven that I sacrificed so much for them to 
     get it and have it.

  We owe it to those who went before us not to so easily give up our 
liberties.
  In one of our hearings, we were told, Oh, it's only the metadata; 
it's only the numbers. We don't get who has what number and then look 
at what calls they've made. It's the metadata so we can run the 
algorithms and look for patterns.
  When you have the numbers--and I asked the question--our intelligence 
agencies, which are the NSA, the CIA, the FBI, are obviously entitled 
without a warrant to go to the public sector and gather information 
that any American could get. That means, if any American can get what 
someone's phone number is, then the CIA, the NSA, the FBI, the Secret 
Service--anybody--can get that, and then all you have to do is pull up 
those numbers and say, Well, I wonder who this person called? and start 
looking.
  I want to say this as respectfully as possible: for those who say we 
can justify this because it has probably saved us from some terrorist 
activities, don't forget John Adams and the thoughts of the Founders 
and of those who gave their lives, their fortunes--everything they 
had--for us to have liberty when they said, Don't give up your liberty.
  I would humbly submit, back in those days of the Revolution, before 
the Revolution, that it would have been very easy for King George to 
have taken it a step even beyond what he did where he could quarter 
soldiers in people's homes without their permission. It was one of the 
things that frustrated our Founders, that the King, without anyone's 
permission, could send a soldier in to stay in your home--or more than 
one soldier.
  That's why they wanted to be assured that nobody--no government in 
America--could ever do that kind of thing again, that they could send a 
soldier just to live in your house and watch everything and take notes 
on what you're doing. If they suspected, Gee, we don't have any hard 
evidence, but I don't trust that guy, so let's send a soldier to stay 
in that home, then they could do that, and the soldier, certainly, 
hypothetically, could have taken notes of every activity.
  Then it would have been very easy for King George to say, Look, I 
know you're concerned about my putting a soldier in every home that we 
are concerned about even though there is no evidence you violated the 
law or no evidence you're a threat, but I want to point out to you--and 
this is hypothetical--that since we put soldiers in all of these homes 
to monitor everything going on in the home, we actually found a handful 
of terrorist plots by some of the revolutionaries, and we've been able 
to stop those, so we have actually saved American lives by having a 
soldier in every home of people we don't trust.
  People could have said back at the time, Wow, the King is really 
thinking about us and our safety because he has saved people from being 
killed here in America because, by having soldiers in every home and by 
monitoring all this activity, they were actually able to find some 
people who were troublemakers who would have harmed Americans.

                              {time}  1330

  Yes, it's worth it. Okay, King George, you keep monitoring everything 
anybody is doing, even when you don't have probable cause. There's some 
similarity here.
  When the government can put that big Orwellian eye in your home that 
you call your computer, your avenue, your network to the world, they 
can watch everything you're doing in your home. They can watch every 
purchase you make. We find out now this Consumer Financial Protection 
Bureau that was created under Speaker Pelosi, well, they want to 
protect Americans from egregious credit card companies, and so they're 
gathering people's financial information.
  I go back to 2002, when a CIA attorney at one of our judicial 
conferences

[[Page H5083]]

said, Gee, banks have all your financial information. Why shouldn't the 
government? I was aghast and said because the banks can't come to your 
home, bust down the door, throw you to the ground, put a boot on your 
back, and put you in handcuffs and drag you off. But the government can 
and does. So we've got to be very careful to make sure that the 
government does not overreach what they're allowed to do.
  Yes, banks and third parties may have financial information, but it 
does not mean the government is entitled to it. In fact, it's just the 
opposite. They're strictly forbidden to have that kind of information 
until Speaker Pelosi's House and Harry Reid's Senate passed a bill that 
said, Oh, yeah, we'll create this financial bureau, and now we're 
finding out they're gathering the financial information of people. Then 
we're assured you don't have to worry about ObamaCare, even though 
we're hiring all these investigators and we're not going to check their 
background, we're not going to make sure that they're not a problem or 
have a criminal record; but we'll make sure, or try to, that they 
finished high school, and they may need to review your medical records 
to see what kind of government-mandated insurance policy you need.
  Where does this stop? The government under ObamaCare will have every 
American's medical records. The financial bureau thinks they can have 
everybody's financial information. That's the government having that. 
Then we find out the NSA has gotten orders so they can get every single 
call that we have made to somebody. There is no specificity in an order 
like that. This has to stop. This is an issue where both sides of the 
aisle have a kindred spirit. We want to protect people's liberty; but 
some that are so close to this issue have seen how much can be gleaned 
from people's complete phone records and they say, Look, this is really 
dangerous in America. I know how dangerous it is. I've been sounding 
the alarm for years now.
  The Muslim Brotherhood has profound influence in this country and in 
this administration and in this government. As we've already seen, the 
largest demonstration in the history of the world in Egypt, they 
figured it out: we don't want the radical Islamists, the Muslim 
Brotherhood running our country. Well, I don't want them running ours 
either, but they're there. Secretary Napolitano couldn't even tell me 
how many Muslim Brotherhood members she had giving her advice. She 
didn't even know. At least she said she didn't.
  This is a dangerous situation. We are in danger. There are people who 
want to take our liberty and destroy our country, but that's no reason 
for us to voluntarily give up all our liberty, give up all our privacy 
in the hope that maybe we can stop others from taking it from us. When 
you give up liberty, you've given it up. We're supposed to have the 
government protecting us from these kinds of intrusions, not demanding 
all of the most private aspects of our lives. If somebody wants to 
disclose private information or private pictures about themselves, 
that's their business; but the government shouldn't be able to come in 
and get a picture of your most private information about your life and 
spread it around the government. That is happening, and there is so 
much more potential for it to continue to happen and to get worse.
  The PATRIOT Act seemed like a good thing if we could have adequate 
oversight and make sure that the kinds of things we've now found out 
are going on, make sure they weren't going on. Now we know they are. 
I've been surprised. I've talked to some of my liberal friends across 
the aisle that expressed concerns about giving authority to the 
government to get this kind of information, and I was surprised some of 
them voted ``no'' against Justin Amash's amendment. But that's the 
thing: the NSA and CIA put pressure on Republicans. They say, Hey, 
you're conservative. We're with you. You've got to help us have these 
tools. We're preventing people from being killed. You've got to let us 
have all this private information about everybody. We promise that 
we're not abusing it. And it persuades people on our side and then on 
the other side. I talked to a friend who showed me a printout that he 
had been given, and it said, Well, no, I think exactly like you do. I 
don't want them having that much information. But, see, Louis, it says 
the law says that this can only be done--and it quoted--to protect 
against international terrorism and foreign intelligence information. I 
said that's right, that's what the law says, but that's not what 
they're doing. Really? I mean, it said this. I said, Right, that's what 
the law allows, but they're going so far beyond that. This is something 
we need to work on together. This is an issue where the left and the 
right can come together.
  Look, we want to secure people's safety and security, but we can't 
keep giving up private liberty. Let those that want to tweet out their 
most intimate details do so. Fine. Go for it. Be a fool. But for those 
who just want to be Americans and live their private lives and be left 
alone, the government should not be watching everything they do through 
their computers, through their debit and credit card purchases and 
transactions, through every phone call they make. I thought I was being 
rather cute when I told my colleagues across the aisle who were very 
concerned that the government might get more than just information 
about contacts with foreign terrorists because that's what we were 
told. Look, the only way we gather information about who you're 
calling, who's calling you, is if you make a call to a known foreign 
terrorist or you get a call from a known foreign terrorist or you make 
a call to a member of a known terrorist organization or you get a call 
from a member of a known terrorist organization. That comforted me. So 
I told my friends publicly that if you're worried about having the 
government gather information on who you're calling, who's calling you, 
then when you call your foreign terrorist friends, use somebody else's 
phone. It was amusing at the time, but now it turns out this government 
is gathering everybody's information and they're storing it and they'll 
have it and there's no indication they're ever going to get rid of it.

  When I was in college, I was required to read Kafka's book ``The 
Trial.'' I thought it was the silliest novel I had ever read because it 
was one circumstantial, just crazy event after another. The poor man 
never knew who was charging him, what he was charged with. I thought 
this is just somebody creating a nightmare scenario, but thank God we 
live in America and this can never happen here. Yet I see the seeds of 
a Kafka novel unfolding before us.
  I hope and pray, Mr. Speaker, that we will come together on both 
sides of the aisle and say let's secure our borders so only people that 
are legally coming in come in. Then once that's done, we can get an 
immigration bill done. Then, because we're doing that, we don't have to 
keep giving up liberty to have security. Then let's clean up this law 
so that some judge who's completely forgotten what the Constitution 
really means doesn't go off and sign an order to give the government 
every single phone call that's made to every single individual in and 
outside the United States. Otherwise, John Adams will look from Heaven, 
and he will be regretting that he sacrificed so much for us to have the 
liberty that we're squandering.
  I yield back the balance of my time.

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