[Congressional Record Volume 165, Number 150 (Wednesday, September 18, 2019)]
[House]
[Pages H7770-H7771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





              REAUTHORIZING SECTION 215 OF THE PATRIOT ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2019, the gentleman from Texas (Mr. Gohmert) is recognized 
for 60 minutes as the designee of the minority leader.
  Mr. GOHMERT. Madam Speaker, today in our Judiciary Committee was 
quite interesting. For some people, it was quite a role reversal.
  We had a hearing on the potential reauthorization of the FISA courts 
and discussion about powers of our DOJ, FBI, and NSA under what is 
often referred to as section 215.
  It was interesting in the way of role reversals because, for years, 
we have been told that Democrats are the real civil libertarians. They 
are the ones who are trying to defend privacy rights, rights of 
Americans to think what they want, do what they want, and without being 
interrupted or spied upon by the Federal Government.
  Yet, today, over and over, we heard apologies basically from our 
Democratic friends to the representative of the Department of Justice, 
the FBI, and National Security Administration for comments of some 
Republicans.
  There really was no need to apologize. We weren't attacking these 
three individual witnesses, but there are issues that are still 
unresolved that many of my friends across the aisle used to be 
concerned about, privacy and Fourth Amendment rights that are supposed 
to protect us from improper search and seizure or spying, or 
surveillance being one of the more important. So we had these 
witnesses.
  It was interesting, and if I were our friend Israel, I would be very 
concerned, because I asked these representatives, first of all, does 
the Department of Justice, the FBI, or the NSA consider Russia to be a 
known terrorist organization under section 215. Each of the 
representatives indicated, in turn, that they could not answer that 
question.
  Well, the silence seemed to speak volumes to me. It should have been 
an easy question to answer.
  I asked about Israel. Does the DOJ, FBI, or NSA consider the 
Ambassador from Israel to be a representative of a terrorist 
organization, and they couldn't answer that question.
  That is quite interesting.
  But my concern arose out of reading and hearing, in prior years, 
about how apparently Jeff Sessions was surveilled because he was 
speaking to a Russian Ambassador, and there were reports that the 
Ambassador from Israel had been surveilled.
  So, under 215, they are supposed to be part of either a known 
terrorist or an ally, someone who identifies with a known terrorist 
organization.
  So it is interesting that things have evolved the way they have so 
that our own intelligence can't tell us whether Russia or Israel is 
considered a terrorist organization. It is quite alarming.
  But ever since I first got here, my first term, when we took up 
reauthorization of the PATRIOT Act--and I understood when the PATRIOT 
Act was passed, it was just days after, maybe a week or so after 9/11, 
and we didn't know who had hit us, were they about to hit us again, 
were 3,000 or more people going to be dying any day again and again.
  So I wasn't here, but Congress passed this overarching bill that gave 
way too much power to the government, but I understand the atmosphere 
here at the time.
  Then section 215 came up for reauthorization, as has the FISA courts 
in recent years. It is important that we continue to take a look at 
those. I think it is extremely important that we have sunsets; 
otherwise, if there is not the chance that these powers will go away, 
then we always have trouble, no matter whether it is a Democrat or a 
Republican administration, always have trouble getting people to come 
up and speak frankly or get records so we know what may have occurred, 
whether it was abused or not.
  But I go to section 215, and I have been concerned about some of this 
language since I first got here.
  As a former litigator, prosecutor, judge, chief justice, I know words 
mean things. This section says that, basically, the FBI can make an 
application for an order requiring production of tangible things for an 
investigation to obtain foreign intelligence information not concerning 
a U.S. person or to protect against international terrorism or 
clandestine intelligence activity.
  Now, I asked this several years ago when this was being pushed for 
reauthorization: What does ``clandestine intelligence activity'' mean? 
What does that mean? Because, to me, if I am the judge, you come to me 
and you want a warrant and you say, ``We have caught somebody engaged 
in clandestine intelligence activities,'' wow, that is so broad.

  So the question I asked today I asked years ago: Could that mean 
that, if my neighbor is peering, watching my yard from behind his or 
her curtain--well, that is clandestine. They are hiding behind a 
curtain. They are trying to see what is going on. That is gathering 
intelligence. So would that justify a warrant from the FISA court?
  Well, they couldn't answer that question, and they never have. They 
never have attempted to answer that question.
  In fact, years ago, when it was reauthorized, the representatives of 
DOJ, CIA, NSA, they were all saying:
  ``Look, that really doesn't come into play, particularly.''
  ``Oh, well, good. Then let's eliminate it.''
  ``Well, no. We don't want to eliminate our ability to get a warrant 
based on clandestine intelligence activities.''
  ``Well, what does that mean? How has it been used?''
  Couldn't get an answer, but they sure wanted to keep it in there.
  What does that mean? It doesn't say ``foreign clandestine 
intelligence.'' It doesn't say ``terrorist clandestine intelligence.''
  So words mean things. Why do they keep wanting that language in 
there?
  It used to be not as big of a concern until we find out that the FISA 
courts, basically--we might call them the RS courts instead of the FISA 
courts. The FISA courts are basically RS courts, rubberstamp courts 
because, basically, when the Federal Government comes in, they get what 
they want.
  I was one, having, again, been a judge, I had law officers come 
before me many times. Sometimes they would come to my house at 2 or 3 
in the morning. They would need a warrant quickly, and the requirements 
of the Constitution are very clear.
  I just happen to have a copy of the Constitution. Amendment IV says: 
``The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no warrants shall issue, but upon probable cause, 
supported by oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  That particular description, those words, are very important, as are 
the two words, ``probable cause.''

                              {time}  1430

  We were taught, and as a judge I applied it, that if a law officer 
wants a warrant--sometimes there were FBI who would come and sometimes 
they would come with other law officers--but they knew, under the 
Constitution--they normally did a very good job--you have to have an 
affidavit that establishes there is probable cause to believe a crime 
was committed and probable cause to believe the person whose records 
were sought to be seized had probably committed the crime. It is not 
enough to just allege we have probable cause to believe a crime was 
committed and this person committed it. That is not enough. The 
affidavit must describe facts--not conclusions, but facts--that 
establish that, yeah, probably a crime was committed and probably this 
person did it and that is why we need this record, that is why we need 
this search warrant, and that is why we need to be able to go look for 
those specific records, specific things.
  Imagine my surprise when a FISA court order was leaked--and it was an 
order by the FISA court here in Washington--and it says, it orders, it 
was ordered:

       The custodian of records shall produce to the NSA on 
     service of this order and continue production on an ongoing 
     daily basis thereafter for the duration of this order, unless 
     otherwise ordered by the court, all call detail records or 
     telephoning metadata created by Verizon for communications 1) 
     between the United States and abroad, or 2) wholly within the 
     United States, including local telephone calls. This order 
     does not require Verizon to produce telephone and metadata 
     for communications wholly originating and terminating in 
     foreign countries.


[[Page H7771]]


  That was interesting to me because, first of all, what this order is 
going after, supposedly, under section 215, trying to monitor terrorist 
activity, it only wanted calls by Americans. Whereas, if you are an 
American in the United States, you have constitutional rights, 
including the Fourth Amendment, that this certainly appears to violate. 
There is no allegation of probable cause a crime is committed, no 
allegation that Verizon or the records of the people being sought had 
committed a crime, the application apparently said ``must have'' 
because that is the way the order reads: We want everybody's records 
that Verizon has if they are protected by the Fourth Amendment, but we 
don't want anybody's records, foreign records, even though they are not 
protected by the Constitution and Fourth Amendment rights against 
unfair search and seizure.
  That is really an interesting role reversal right here. You are 
protecting the people who have no protection and going after the people 
who are protected by the Fourth Amendment.
  It has caused a lot of concerns about, well, what else does the FISA 
court rubber stamp? It seems kind of silly, but we have been told that 
section 215--that I have read from here--was reformed and that the NSA 
ended their program of gathering records. But the thing is, as long as 
there is a FISA court and as long as there is a section 215 that is 
even half as broad as it currently is, any of our law enforcement can 
go back into the FISA court and get a warrant rubber stamped, which is 
basically what happened, it appears, in the FISA orders regarding the 
Trump campaign.
  The thing, as a former judge, that really grieves me most about the 
FISA court is that we have not had a FISA judge who had sufficient 
righteous indignation to demand Comey, Rosenstein, or McCabe--if he 
participated--any of those participants, to come in before them and 
show cause as to why they should not go to jail for committing a fraud 
upon the court, which it sure appears they did.
  They were not truthful about the Russia hoax, about the so-called 
Russian dossier that a discredited, dishonest former MI6 agent in 
England put together based on representations by Russian agents, that 
he now admits they could have worked for Putin, I don't know. And that 
were being purchased, paid for, by the DNC and the Clinton campaign 
through Fusion GPS, which included Nellie Ohr, who is married to Bruce 
Ohr, who kept bringing material from them that had been purchased by 
the FBI to the DOJ.
  This, more than anything else, causes me to think maybe we need to do 
away with the FISA court and go back to the way that things were, 
because we didn't have a FISA judge involved in this with enough 
morality, enough righteousness, and enough honesty, to recognize that a 
fraud against their court was committed and to be offended by it.
  If somebody came in and got a warrant from me and they did not 
provide me the true facts, and they knew their source could not be 
verified and they swore that this was verified, somebody would be going 
to jail. That is so dishonest. People in those kinds of positions that 
we trust with so much power, they need to be honest, and especially 
before a judge.
  But, apparently, we have one or more FISA judges who are not offended 
to be lied to. Maybe it is because they saw it was going for a good 
cause to try to stop the Donald Trump campaign or get him thrown out as 
President, that is a worthy cause. Even though it was a dishonest 
application affidavit and warrant, that is okay with the FISA judge.
  I would really like to have the FISA judges come before our committee 
and testify about their lack of morality, their lack of integrity, and 
their not caring that people would come in and submit lies and verify 
something they knew, and intentionally deceived about, being 
unverifiable.
  We have some work to do. I am very grateful to Congresswoman Zoe 
Lofgren. I believe she was sincere today in a hearing when she looked 
down the dais at me and my Republican friends and said, we know there 
are reforms that need to be made, we know that there are amendments 
that need to occur regarding the system, and we look forward to working 
with our friends on the other side of the aisle.
  I hope that is true because this little experiment in a 
constitutional Democratic Republic is in jeopardy. I know people want 
to talk about climate change, but 12 years from now when we are told 
the world may end if we don't do something about climate change, this 
little constitutional Democratic Republic will have ceased to be based 
on the Constitution, which has already set a record for being the 
longest basis for a country in the history of the world. So we have 
work to do, and I hope that we can do it in a bipartisan manner.

  Even if you read in the Bible about King David, what you learn is 
that even the finest people in the world, if they are not held 
accountable, if there is not some accountability, can do some really 
egregious things. That is our obligation here in Congress. Let's have 
some accountability.
  Madam Speaker, I yield back the balance of my time.

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