[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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