[Congressional Record (Bound Edition), Volume 152 (2006), Part 15]
[House]
[Pages 20597-20622]
[From the U.S. Government Publishing Office, www.gpo.gov]




               ELECTRONIC SURVEILLANCE MODERNIZATION ACT

  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1052, I 
call up the bill (H.R. 5825) to update the Foreign Intelligence 
Surveillance Act of 1978, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 1052, in lieu 
of the amendments recommended by the Committee on the Judiciary and the 
Permanent Select Committee on Intelligence printed in the bill, the 
amendment in the nature of a substituted printed in House Report 109-
696 is adopted, and the bill, as amended, is considered read.
  The text of the bill, as amended, is as follows:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Electronic Surveillance 
     Modernization Act''.

     SEC. 2. FISA DEFINITIONS.

       (a) Agent of a Foreign Power.--Subsection (b)(1) of section 
     101 of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801) is amended--
       (1) in subparagraph (B), by striking ``; or'' and inserting 
     ``;''; and
       (2) by adding at the end the following:
       ``(D) is reasonably expected to possess, control, transmit, 
     or receive foreign intelligence information while such person 
     is in the United States, provided that the official making 
     the certification required by section 104(a)(7) deems such 
     foreign intelligence information to be significant; or''.
       (b) Electronic Surveillance.--Subsection (f) of such 
     section is amended to read as follows:
       ``(f) `Electronic surveillance' means--
       ``(1) the installation or use of an electronic, mechanical, 
     or other surveillance device for acquiring information by 
     intentionally directing surveillance at a particular known 
     person who is reasonably believed to be in the United States 
     under circumstances in which that person has a reasonable 
     expectation of privacy and a warrant would be required for 
     law enforcement purposes; or
       ``(2) the intentional acquisition of the contents of any 
     communication under circumstances in which a person has a 
     reasonable expectation of privacy and a warrant would be 
     required for law enforcement purposes, if both the sender and 
     all intended recipients are reasonably believed to be located 
     within the United States.''.
       (c) Minimization Procedures.--Subsection (h) of such 
     section is amended--
       (1) in paragraph (2), by striking ``importance;'' and 
     inserting ``importance; and'';
       (2) in paragraph (3), by striking ``; and'' and inserting 
     ``.''; and
       (3) by striking paragraph (4).
       (d) Wire Communication and Surveillance Device.--Subsection 
     (l) of such section is amended to read as follows:
       ``(l) `Surveillance device' is a device that allows 
     surveillance by the Federal Government, but excludes any 
     device that extracts or analyzes information from data that 
     has already been acquired by the Federal Government by lawful 
     means.''.
       (e) Contents.--Subsection (n) of such section is amended to 
     read as follows:
       ``(n) `Contents', when used with respect to a 
     communication, includes any information concerning the 
     substance, purport, or meaning of that communication.''.

     SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER 
                   ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.

       (a) In General.--The Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) is further amended by 
     striking section 102 and inserting the following:


 ``AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE 
                                PURPOSES

       ``Sec. 102.  (a) In General.--Notwithstanding any other 
     law, the President, acting through the Attorney General, may 
     authorize electronic surveillance without a court order under 
     this title to acquire foreign intelligence information for 
     periods of up to one year if the Attorney General certifies 
     in writing under oath that--
       ``(1) the electronic surveillance is directed at--
       ``(A) the acquisition of the contents of communications of 
     foreign powers, as defined in paragraph (1), (2), or (3) of 
     section 101(a), or an agent of a foreign power, as defined in 
     subparagraph (A) or (B) of section 101(b)(1); or
       ``(B) the acquisition of technical intelligence, other than 
     the spoken communications of individuals, from property or 
     premises under the open and exclusive control of a foreign 
     power, as defined in paragraph (1), (2), or (3) of section 
     101(a); and
       ``(2) the proposed minimization procedures with respect to 
     such surveillance meet the definition of minimization 
     procedures under section 101(h);
     if the Attorney General reports such minimization procedures 
     and any changes thereto to the Permanent Select Committee on 
     Intelligence of the House of Representatives and the Select 
     Committee on Intelligence of the Senate at least 30 days 
     prior to the effective date of such minimization procedures, 
     unless the Attorney General determines immediate action is 
     required and notifies the committees immediately of such 
     minimization procedures and the reason for their becoming 
     effective immediately.
       ``(b) Minimization Procedures.--An electronic surveillance 
     authorized by this subsection may be conducted only in 
     accordance with the Attorney General's certification and the 
     minimization procedures. The Attorney General shall assess 
     compliance with such procedures and shall report such 
     assessments to the Permanent Select Committee on Intelligence 
     of the House of Representatives and the Select Committee on 
     Intelligence of the Senate under the provisions of section 
     108(a).
       ``(c) Submission of Certification.--The Attorney General 
     shall immediately transmit under seal to the court 
     established under section 103(a) a copy of his certification. 
     Such certification shall be maintained under security 
     measures established by the Chief Justice with the 
     concurrence of the Attorney General, in consultation with the 
     Director of National Intelligence, and shall remain sealed 
     unless--
       ``(1) an application for a court order with respect to the 
     surveillance is made under section 104; or
       ``(2) the certification is necessary to determine the 
     legality of the surveillance under section 106(f).


  ``AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION

       ``Sec. 102A.  (a) In General.--Notwithstanding any other 
     law, the President, acting through the Attorney General may, 
     for periods of up to one year, authorize the acquisition of 
     foreign intelligence information concerning a person 
     reasonably believed to be outside the United States if the 
     Attorney General certifies in writing under oath that--
       ``(1) the acquisition does not constitute electronic 
     surveillance;
       ``(2) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of a 
     wire or electronic communications service provider, 
     custodian, or other person (including any officer, employee, 
     agent, or other specified person of such service provider, 
     custodian, or other person) who has access to wire or 
     electronic communications, either as they are transmitted or 
     while they are stored, or equipment that is being or may be 
     used to transmit or store such communications;
       ``(3) a significant purpose of the acquisition is to obtain 
     foreign intelligence information; and
       ``(4) the proposed minimization procedures with respect to 
     such acquisition activity meet the definition of minimization 
     procedures under section 101(h).
       ``(b) Specific Place Not Required.--A certification under 
     subsection (a) is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition of foreign intelligence information will be 
     directed.
       ``(c) Submission of Certification.--The Attorney General 
     shall immediately transmit under seal to the court 
     established under section 103(a) a copy of a certification 
     made under subsection (a). Such certification shall be 
     maintained under security measures established by the Chief 
     Justice of the United States and the Attorney General, in 
     consultation with the Director of National Intelligence, and 
     shall remain sealed unless the certification is necessary to 
     determine the legality of the acquisition under section 102B.
       ``(d) Minimization Procedures.--An acquisition under this 
     section may be conducted only in accordance with the 
     certification of the Attorney General and the minimization 
     procedures adopted by the Attorney General. The Attorney 
     General shall assess compliance with such procedures and 
     shall report such assessments to the Permanent Select 
     Committee on Intelligence of the House of Representatives and 
     the Select Committee on Intelligence of the Senate under 
     section 108(a).


``DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS 
                  OF FOREIGN INTELLIGENCE INFORMATION

       ``Sec. 102B.  (a) Directive.--With respect to an 
     authorization of electronic surveillance under section 102 or 
     an authorization of an acquisition under section 102A, the 
     Attorney General may direct a person to--
       ``(1) immediately provide the Government with all 
     information, facilities, and assistance necessary to 
     accomplish the acquisition of foreign intelligence 
     information in such a

[[Page 20598]]

     manner as will protect the secrecy of the electronic 
     surveillance or acquisition and produce a minimum of 
     interference with the services that such person is providing 
     to the target; and
       ``(2) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the electronic surveillance or 
     acquisition or the aid furnished that such person wishes to 
     maintain.
       ``(b) Compensation.--The Government shall compensate, at 
     the prevailing rate, a person for providing information, 
     facilities, or assistance pursuant to subsection (a).
       ``(c) Failure to Comply.--In the case of a failure to 
     comply with a directive issued pursuant to subsection (a), 
     the Attorney General may petition the court established under 
     section 103(a) to compel compliance with the directive. The 
     court shall issue an order requiring the person or entity to 
     comply with the directive if it finds that the directive was 
     issued in accordance with section 102(a) or 102A(a) and is 
     otherwise lawful. Failure to obey an order of the court may 
     be punished by the court as contempt of court. Any process 
     under this section may be served in any judicial district in 
     which the person or entity may be found.
       ``(d) Review of Petitions.--(1) In General.--(A) 
     Challenge.--A person receiving a directive issued pursuant to 
     subsection (a) may challenge the legality of that directive 
     by filing a petition with the pool established under section 
     103(e)(1).
       ``(B) Assignment of Judge.--The presiding judge designated 
     pursuant to section 103(b) shall assign a petition filed 
     under subparagraph (A) to one of the judges serving in the 
     pool established by section 103(e)(1). Not later than 24 
     hours after the assignment of such petition, the assigned 
     judge shall conduct an initial review of the directive. If 
     the assigned judge determines that the petition is frivolous, 
     the assigned judge shall deny the petition and affirm the 
     directive or any part of the directive that is the subject of 
     the petition. If the assigned judge determines the petition 
     is not frivolous, the assigned judge shall, within 72 hours, 
     consider the petition in accordance with the procedures 
     established under section 103(e)(2) and provide a written 
     statement for the record of the reasons for any determination 
     under this subsection.
       ``(2) Standard of Review.--A judge considering a petition 
     to modify or set aside a directive may grant such petition 
     only if the judge finds that such directive does not meet the 
     requirements of this section or is otherwise unlawful. If the 
     judge does not modify or set aside the directive, the judge 
     shall affirm such directive, and order the recipient to 
     comply with such directive.
       ``(3) Directives Not Modified.--Any directive not 
     explicitly modified or set aside under this subsection shall 
     remain in full effect.
       ``(e) Appeals.--The Government or a person receiving a 
     directive reviewed pursuant to subsection (d) may file a 
     petition with the court of review established under section 
     103(b) for review of the decision issued pursuant to 
     subsection (d) not later than 7 days after the issuance of 
     such decision. Such court of review shall have jurisdiction 
     to consider such petitions and shall provide for the record a 
     written statement of the reasons for its decision. On 
     petition by the Government or any person receiving such 
     directive for a writ of certiorari, the record shall be 
     transmitted under seal to the Supreme Court, which shall have 
     jurisdiction to review such decision.
       ``(f) Proceedings.--Judicial proceedings under this section 
     shall be concluded as expeditiously as possible. The record 
     of proceedings, including petitions filed, orders granted, 
     and statements of reasons for decision, shall be maintained 
     under security measures established by the Chief Justice of 
     the United States, in consultation with the Attorney General 
     and the Director of National Intelligence.
       ``(g) Sealed Petitions.--All petitions under this section 
     shall be filed under seal. In any proceedings under this 
     section, the court shall, upon request of the Government, 
     review ex parte and in camera any Government submission, or 
     portions of a submission, which may include classified 
     information.
       ``(h) Liability.--No cause of action shall lie in any court 
     against any person for providing any information, facilities, 
     or assistance in accordance with a directive under this 
     section.
       ``(i) Use of Information.--Information acquired pursuant to 
     a directive by the Attorney General under this section 
     concerning any United States person may be used and disclosed 
     by Federal officers and employees without the consent of the 
     United States person only in accordance with the minimization 
     procedures required by section 102(a) or 102A(a). No 
     otherwise privileged communication obtained in accordance 
     with, or in violation of, the provisions of this section 
     shall lose its privileged character. No information from an 
     electronic surveillance under section 102 or an acquisition 
     pursuant to section 102A may be used or disclosed by Federal 
     officers or employees except for lawful purposes.
       ``(j) Use in Law Enforcement.--No information acquired 
     pursuant to this section shall be disclosed for law 
     enforcement purposes unless such disclosure is accompanied by 
     a statement that such information, or any information derived 
     from such information, may only be used in a criminal 
     proceeding with the advance authorization of the Attorney 
     General.
       ``(k) Disclosure in Trial.--If the Government intends to 
     enter into evidence or otherwise use or disclose in any 
     trial, hearing, or other proceeding in or before any court, 
     department, officer, agency, regulatory body, or other 
     authority of the United States, against an aggrieved person, 
     any information obtained or derived from an electronic 
     surveillance conducted under section 102 or an acquisition 
     authorized pursuant to section 102A, the Government shall, 
     prior to the trial, hearing, or other proceeding or at a 
     reasonable time prior to an effort to disclose or use that 
     information or submit it in evidence, notify the aggrieved 
     person and the court or other authority in which the 
     information is to be disclosed or used that the Government 
     intends to disclose or use such information.
       ``(l) Disclosure in State Trials.--If a State or political 
     subdivision of a State intends to enter into evidence or 
     otherwise use or disclose in any trial, hearing, or other 
     proceeding in or before any court, department, officer, 
     agency, regulatory body, or other authority of a State or a 
     political subdivision of a State, against an aggrieved 
     person, any information obtained or derived from an 
     electronic surveillance authorized pursuant to section 102 or 
     an acquisition authorized pursuant to section 102A, the State 
     or political subdivision of such State shall notify the 
     aggrieved person, the court, or other authority in which the 
     information is to be disclosed or used and the Attorney 
     General that the State or political subdivision intends to 
     disclose or use such information.
       ``(m) Motion to Exclude Evidence.--(1) In General.--Any 
     person against whom evidence obtained or derived from an 
     electronic surveillance authorized pursuant to section 102 or 
     an acquisition authorized pursuant to section 102A is to be, 
     or has been, used or disclosed in any trial, hearing, or 
     other proceeding in or before any court, department, officer, 
     agency, regulatory body, or other authority of the United 
     States, a State, or a political subdivision thereof, may move 
     to suppress the evidence obtained or derived from such 
     electronic surveillance or such acquisition on the grounds 
     that--
       ``(A) the information was unlawfully acquired; or
       ``(B) the electronic surveillance or acquisition was not 
     properly made in conformity with an authorization under 
     section 102(a) or 102A(a).
       ``(2) Timing.--A person moving to suppress evidence under 
     paragraph (1) shall make the motion to suppress the evidence 
     before the trial, hearing, or other proceeding unless there 
     was no opportunity to make such a motion or the person was 
     not aware of the grounds of the motion.
       ``(n) Review of Motions.--If a court or other authority is 
     notified pursuant to subsection (k) or (l), a motion is made 
     pursuant to subsection (m), or a motion or request is made by 
     an aggrieved person pursuant to any other statute or rule of 
     the United States or any State before any court or other 
     authority of the United States or any State--
       ``(1) to discover or obtain an Attorney General directive 
     or other materials relating to an electronic surveillance 
     authorized pursuant to section 102 or an acquisition 
     authorized pursuant to section 102A, or
       ``(2) to discover, obtain, or suppress evidence or 
     information obtained or derived from an electronic 
     surveillance authorized pursuant to section 102 or an 
     acquisition authorized pursuant to section 102A,
     the United States district court or, where the motion is made 
     before another authority, the United States district court in 
     the same district as the authority, shall, notwithstanding 
     any other law, if the Attorney General files an affidavit 
     under oath that disclosure or an adversary hearing would harm 
     the national security of the United States, review in camera 
     and ex parte the application, order, and such other materials 
     relating to such electronic surveillance or such acquisition 
     as may be necessary to determine whether such electronic 
     surveillance or such acquisition authorized under this 
     section was lawfully authorized and conducted. In making this 
     determination, the court may disclose to the aggrieved 
     person, under appropriate security procedures and protective 
     orders, portions of the directive or other materials relating 
     to the acquisition only where such disclosure is necessary to 
     make an accurate determination of the legality of the 
     acquisition.
       ``(o) Determinations.--If, pursuant to subsection (n), a 
     United States district court determines that the acquisition 
     authorized under this section was not lawfully authorized or 
     conducted, it shall, in accordance with the requirements of 
     law, suppress the evidence which was unlawfully obtained or 
     derived or otherwise grant the motion of the aggrieved 
     person. If the court determines that such acquisition was 
     lawfully authorized and conducted, it shall deny the motion 
     of the aggrieved person except to the extent

[[Page 20599]]

     that due process requires discovery or disclosure.
       ``(p) Binding Orders.--Orders granting motions or requests 
     under subsection (m), decisions under this section that an 
     electronic surveillance or an acquisition was not lawfully 
     authorized or conducted, and orders of the United States 
     district court requiring review or granting disclosure of 
     directives, orders, or other materials relating to such 
     acquisition shall be final orders and binding upon all courts 
     of the United States and the several States except a United 
     States court of appeals and the Supreme Court.
       ``(q) Coordination.--(1) In General.--Federal officers who 
     acquire foreign intelligence information may consult with 
     Federal law enforcement officers or law enforcement personnel 
     of a State or political subdivision of a State, including the 
     chief executive officer of that State or political 
     subdivision who has the authority to appoint or direct the 
     chief law enforcement officer of that State or political 
     subdivision, to coordinate efforts to investigate or protect 
     against--
       ``(A) actual or potential attack or other grave hostile 
     acts of a foreign power or an agent of a foreign power;
       ``(B) sabotage, international terrorism, or the development 
     or proliferation of weapons of mass destruction by a foreign 
     power or an agent of a foreign power; or
       ``(C) clandestine intelligence activities by an 
     intelligence service or network of a foreign power or by an 
     agent of a foreign power.
       ``(2) Certification Required.--Coordination authorized 
     under paragraph (1) shall not preclude the certification 
     required by section 102(a) or 102A(a).
       ``(r) Retention of Directives and Orders.--A directive made 
     or an order granted under this section shall be retained for 
     a period of not less than 10 years from the date on which 
     such directive or such order is made.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by inserting after the 
     item relating to section 102 the following:

``102A. Authorization for acquisition of foreign intelligence 
              information.
``102B. Directives relating to electronic surveillance and other 
              acquisitions of foreign intelligence information.''.

     SEC. 4. JURISDICTION OF FISA COURT.

       Section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803) is amended by adding at the end the 
     following new subsection:
       ``(g) Applications for a court order under this title are 
     authorized if the President has, by written authorization, 
     empowered the Attorney General to approve applications to the 
     court having jurisdiction under this section, and a judge to 
     whom an application is made may, notwithstanding any other 
     law, grant an order, in conformity with section 105, 
     approving electronic surveillance of a foreign power or an 
     agent of a foreign power for the purpose of obtaining foreign 
     intelligence information.''.

     SEC. 5. APPLICATIONS FOR COURT ORDERS.

       Section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804) is amended--
       (1) in subsection (a)--
       (A) in paragraph (6), by striking ``detailed description'' 
     and inserting ``summary description'';
       (B) in paragraph (7)--
       (i) in the matter preceding subparagraph (A), by striking 
     ``or officials designated'' and all that follows through 
     ``consent of the Senate'' and inserting ``designated by the 
     President to authorize electronic surveillance for foreign 
     intelligence purposes'';
       (ii) in subparagraph (C), by striking ``techniques;'' and 
     inserting ``techniques; and'';
       (iii) by striking subparagraph (D); and
       (iv) by redesignating subparagraph (E) as subparagraph (D);
       (C) in paragraph (8), by striking ``a statement of the 
     means'' and inserting ``a summary statement of the means'';
       (D) in paragraph (9)--
       (i) by striking ``a statement'' and inserting ``a summary 
     statement''; and
       (ii) by striking ``application;'' and inserting 
     ``application; and'';
       (E) in paragraph (10), by striking ``thereafter; and'' and 
     inserting ``thereafter.''; and
       (F) by striking paragraph (11).
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as 
     subsections (b) through (d), respectively; and
       (4) in paragraph (1)(A) of subsection (d), as redesignated 
     by paragraph (3), by striking ``or the Director of National 
     Intelligence'' and inserting ``the Director of National 
     Intelligence, or the Director of the Central Intelligence 
     Agency''.

     SEC. 6. ISSUANCE OF AN ORDER.

       Section 105 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1805) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively;
       (2) in subsection (c)(1)--
       (A) in subparagraph (D), by striking ``surveillance;'' and 
     inserting ``surveillance; and'';
       (B) in subparagraph (E), by striking ``approved; and'' and 
     inserting ``approved.''; and
       (C) by striking subparagraph (F);
       (3) by striking subsection (d);
       (4) by redesignating subsections (e) through (i) as 
     subsections (d) through (h), respectively;
       (5) in subsection (d), as redesignated by paragraph (4), by 
     amending paragraph (2) to read as follows:
       ``(2) Extensions of an order issued under this title may be 
     granted on the same basis as an original order upon an 
     application for an extension and new findings made in the 
     same manner as required for an original order and may be for 
     a period not to exceed one year.'';
       (6) in subsection (e), as redesignated by paragraph (4), to 
     read as follows:
       ``(e) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of electronic surveillance if the Attorney General--
       ``(1) determines that an emergency situation exists with 
     respect to the employment of electronic surveillance to 
     obtain foreign intelligence information before an order 
     authorizing such surveillance can with due diligence be 
     obtained;
       ``(2) determines that the factual basis for issuance of an 
     order under this title to approve such electronic 
     surveillance exists;
       ``(3) informs a judge having jurisdiction under section 103 
     at the time of such authorization that the decision has been 
     made to employ emergency electronic surveillance; and
       ``(4) makes an application in accordance with this title to 
     a judge having jurisdiction under section 103 as soon as 
     practicable, but not more than 168 hours after the Attorney 
     General authorizes such surveillance.
     If the Attorney General authorizes such emergency employment 
     of electronic surveillance, the Attorney General shall 
     require that the minimization procedures required by this 
     title for the issuance of a judicial order be followed. In 
     the absence of a judicial order approving such electronic 
     surveillance, the surveillance shall terminate when the 
     information sought is obtained, when the application for the 
     order is denied, or after the expiration of 168 hours from 
     the time of authorization by the Attorney General, whichever 
     is earliest. In the event that such application for approval 
     is denied, or in any other case where the electronic 
     surveillance is terminated and no order is issued approving 
     the surveillance, no information obtained or evidence derived 
     from such surveillance shall be received in evidence or 
     otherwise disclosed in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     office, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof, and no information concerning any United 
     States person acquired from such surveillance shall 
     subsequently be used or disclosed in any other manner by 
     Federal officers or employees without the consent of such 
     person, except with the approval of the Attorney General if 
     the information indicates a threat of death or serious bodily 
     harm to any person. A denial of the application made under 
     this subsection may be reviewed as provided in section 
     103.'';
       (7) in subsection (h), as redesignated by paragraph (4)--
       (A) by striking ``a wire or'' and inserting ``an''; and
       (B) by striking ``physical search'' and inserting 
     ``physical search or in response to a certification by the 
     Attorney General or a designee of the Attorney General 
     seeking information, facilities, or technical assistance from 
     such person under section 102B''; and
       (8) by adding at the end the following new subsection:
       ``(i) In any case in which the Government makes an 
     application to a judge under this title to conduct electronic 
     surveillance involving communications and the judge grants 
     such application, the judge shall also authorize the 
     installation and use of pen registers and trap and trace 
     devices to acquire dialing, routing, addressing, and 
     signaling information related to such communications and such 
     dialing, routing, addressing, and signaling information shall 
     not be subject to minimization procedures.''.

     SEC. 7. USE OF INFORMATION.

       Section 106(i) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1806(i)) is amended--
       (1) by striking ``radio communication'' and inserting 
     ``communication''; and
       (2) by striking ``contents indicates'' and inserting 
     ``contents contain significant foreign intelligence 
     information or indicate''.

     SEC. 8. CONGRESSIONAL OVERSIGHT.

       (a) Electronic Surveillance Under FISA.--Section 108 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1808) is amended--
       (1) in subsection (a)(2)--
       (A) in subparagraph (B), by striking ``and'' at the end;
       (B) in subparagraph (C), by striking the period and 
     inserting ``; and''; and
       (C) by adding at the end the following new subparagraph:
       ``(D) the authority under which the electronic surveillance 
     is conducted.''; and
       (2) by striking subsection (b) and inserting the following:

[[Page 20600]]

       ``(b) On a semiannual basis, the Attorney General 
     additionally shall fully inform the Permanent Select 
     Committee on Intelligence of the House of Representatives and 
     the Select Committee on Intelligence of the Senate on 
     electronic surveillance conducted without a court order.''.
       (b) Intelligence Activities.--The National Security Act of 
     1947 (50 U.S.C. 401 et seq.) is amended--
       (1) in section 501 (50 U.S.C. 413)--
       (A) by redesignating subsection (f) as subsection (g); and
       (B) by inserting after subsection (e) the following new 
     subsection:
       ``(f) The Chair of each of the congressional intelligence 
     committees, in consultation with the ranking member of the 
     committee for which the person is Chair, may inform--
       ``(1) on a bipartisan basis, all members or any individual 
     members of such committee, and
       ``(2) any essential staff of such committee,
     of a report submitted under subsection (a)(1) or subsection 
     (b) as such Chair considers necessary.'';
       (2) in section 502 (50 U.S.C. 414), by adding at the end 
     the following new subsection:
       ``(d) Informing of Committee Members.--The Chair of each of 
     the congressional intelligence committees, in consultation 
     with the ranking member of the committee for which the person 
     is Chair, may inform--
       ``(1) on a bipartisan basis, all members or any individual 
     members of such committee, and
       ``(2) any essential staff of such committee,
     of a report submitted under subsection (a) as such Chair 
     considers necessary.''; and
       (3) in section 503 (50 U.S.C. 415), by adding at the end 
     the following new subsection:
       ``(g) The Chair of each of the congressional intelligence 
     committees, in consultation with the ranking member of the 
     committee for which the person is Chair, may inform--
       ``(1) on a bipartisan basis, all members or any individual 
     members of such committee, and
       ``(2) any essential staff of such committee,
     of a report submitted under subsection (b), (c), or (d) as 
     such Chair considers necessary.''.

     SEC. 9. INTERNATIONAL MOVEMENT OF TARGETS.

       (a) Electronic Surveillance.--Section 105(d) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as 
     redesignated by section 6(4), is amended by adding at the end 
     the following new paragraph:
       ``(4) An order issued under this section shall remain in 
     force during the authorized period of surveillance 
     notwithstanding the absence of the target from the United 
     States, unless the Government files a motion to extinguish 
     the order and the court grants the motion.''.
       (b) Physical Search.--Section 304(d) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)) is 
     amended by adding at the end the following new paragraph:
       ``(4) An order issued under this section shall remain in 
     force during the authorized period of surveillance 
     notwithstanding the absence of the target from the United 
     States, unless the Government files a motion to extinguish 
     the order and the court grants the motion.''.

     SEC. 10. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM 
                   PROGRAMS.

       (a) In General.--Notwithstanding any other provision of 
     law, and in addition to the immunities, privileges, and 
     defenses provided by any other provision of law, no action, 
     claim, or proceeding shall lie or be maintained in any court, 
     and no penalty, sanction, or other form of remedy or relief 
     shall be imposed by any court or any other body, against any 
     person for an activity arising from or relating to the 
     provision to an element of the intelligence community of any 
     information (including records or other information 
     pertaining to a customer), facilities, or assistance during 
     the period of time beginning on September 11, 2001, and 
     ending on the date that is 60 days after the date of the 
     enactment of this Act, in connection with any alleged 
     communications intelligence program that the Attorney General 
     or a designee of the Attorney General certifies, in a manner 
     consistent with the protection of State secrets, is, was, or 
     would be intended to protect the United States from a 
     terrorist attack. This section shall apply to all actions, 
     claims, or proceedings pending on or after the effective date 
     of this Act.
       (b) Jurisdiction.--Any action, claim, or proceeding 
     described in subsection (a) that is brought in a State court 
     shall be deemed to arise under the Constitution and laws of 
     the United States and shall be removable pursuant to section 
     1441 of title 28, United States Code.
       (c) Definitions.--In this section:
       (1) Intelligence community.--The term ``intelligence 
     community'' has the meaning given the term in section 3(4) of 
     the National Security Act of 1947 (50 U.S.C. 401a(4)).
       (2) Person.--The term ``person'' has the meaning given the 
     term in section 2510(6) of title 18, United States Code.

     SEC. 11. REPORT ON MINIMIZATION PROCEDURES.

       (a) Report.--Not later than two years after the date of the 
     enactment of this Act, and annually thereafter until December 
     31, 2009, the Director of the National Security Agency, in 
     consultation with the Director of National Intelligence and 
     the Attorney General, shall submit to the Permanent Select 
     Committee on Intelligence of the House of Representatives and 
     the Select Committee on Intelligence of the Senate a report 
     on the effectiveness and use of minimization procedures 
     applied to information concerning United States persons 
     acquired during the course of a communications activity 
     conducted by the National Security Agency.
       (b) Requirements.--A report submitted under subsection (a) 
     shall include--
       (1) a description of the implementation, during the course 
     of communications intelligence activities conducted by the 
     National Security Agency, of procedures established to 
     minimize the acquisition, retention, and dissemination of 
     nonpublicly available information concerning United States 
     persons;
       (2) the number of significant violations, if any, of such 
     minimization procedures during the 18 months following the 
     effective date of this Act; and
       (3) summary descriptions of such violations.
       (c) Retention of Information.--Information concerning 
     United States persons shall not be retained solely for the 
     purpose of complying with the reporting requirements of this 
     section.

     SEC. 12. AUTHORIZATION AFTER AN ARMED ATTACK.

       (a) Electronic Surveillance.--Section 111 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is 
     amended by striking ``for a period not to exceed'' and all 
     that follows and inserting the following: ``for a period not 
     to exceed 90 days following an armed attack against the 
     territory of the United States if the President submits to 
     the Permanent Select Committee on Intelligence of the House 
     of Representatives and the Select Committee on Intelligence 
     of the Senate notification of the authorization under this 
     section.''.
       (b) Physical Search.--Section 309 of such Act (50 U.S.C. 
     1829) is amended by striking ``for a period not to exceed'' 
     and all that follows and inserting the following: ``for a 
     period not to exceed 90 days following an armed attack 
     against the territory of the United States if the President 
     submits to the Permanent Select Committee on Intelligence of 
     the House of Representatives and the Select Committee on 
     Intelligence of the Senate notification of the authorization 
     under this section.''.

     SEC. 13. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A 
                   TERRORIST ATTACK.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is further amended--
       (1) by adding at the end of title I the following new 
     section:


  ``AUTHORIZATION FOLLOWING A TERRORIST ATTACK UPON THE UNITED STATES

       ``Sec. 112.  (a) In General.--Notwithstanding any other 
     provision of law, but subject to the provisions of this 
     section, the President, acting through the Attorney General, 
     may authorize electronic surveillance without an order under 
     this title to acquire foreign intelligence information for a 
     period not to exceed 90 days following a terrorist attack 
     against the United States if the President submits a 
     notification to the congressional intelligence committees and 
     a judge having jurisdiction under section 103 that--
       ``(1) the United States has been the subject of a terrorist 
     attack; and
       ``(2) identifies the terrorist organizations or affiliates 
     of terrorist organizations believed to be responsible for the 
     terrorist attack.
       ``(b) Subsequent Certifications.--At the end of the 90-day 
     period described in subsection (a), and every 90 days 
     thereafter, the President may submit a subsequent 
     certification to the congressional intelligence committees 
     and a judge having jurisdiction under section 103 that the 
     circumstances of the terrorist attack for which the President 
     submitted a certification under subsection (a) require the 
     President to continue the authorization of electronic 
     surveillance under this section for an additional 90 days. 
     The President shall be authorized to conduct electronic 
     surveillance under this section for an additional 90 days 
     after each such subsequent certification.
       ``(c) Electronic Surveillance of Individuals.--The 
     President, or an official designated by the President to 
     authorize electronic surveillance, may only conduct 
     electronic surveillance of a person under this section if the 
     President or such official determines that--
       ``(1) there is a reasonable belief that such person is 
     communicating with a terrorist organization or an affiliate 
     of a terrorist organization that is reasonably believed to be 
     responsible for the terrorist attack; and
       ``(2) the information obtained from the electronic 
     surveillance may be foreign intelligence information.
       ``(d) Minimization Procedures.--The President may not 
     authorize electronic surveillance under this section until 
     the Attorney General approves minimization procedures for 
     electronic surveillance conducted under this section.
       ``(e) United States Persons.--Notwithstanding subsection 
     (a) or (b), the President

[[Page 20601]]

     may not authorize electronic surveillance of a United States 
     person under this section without an order under this title 
     for a period of more than 60 days unless the President, 
     acting through the Attorney General, submits a certification 
     to the congressional intelligence committees that--
       ``(1) the continued electronic surveillance of the United 
     States person is vital to the national security of the United 
     States;
       ``(2) describes the circumstances that have prevented the 
     Attorney General from obtaining an order under this title for 
     continued surveillance;
       ``(3) describes the reasons for believing the United States 
     person is affiliated with or in communication with a 
     terrorist organization or affiliate of a terrorist 
     organization that is reasonably believed to be responsible 
     for the terrorist attack; and
       ``(4) describes the foreign intelligence information 
     derived from the electronic surveillance conducted under this 
     section.
       ``(f) Use of Information.--Information obtained pursuant to 
     electronic surveillance under this subsection may be used to 
     obtain an order authorizing subsequent electronic 
     surveillance under this title.
       ``(g) Reports.--Not later than 14 days after the date on 
     which the President submits a certification under subsection 
     (a), and every 30 days thereafter until the President ceases 
     to authorize electronic surveillance under subsection (a) or 
     (b), the President shall submit to the congressional 
     intelligence committees a report on the electronic 
     surveillance conducted under this section, including--
       ``(1) a description of each target of electronic 
     surveillance under this section; and
       ``(2) the basis for believing that each target is in 
     communication with a terrorist organization or an affiliate 
     of a terrorist organization.
       ``(h) Congressional Intelligence Committees Defined.--In 
     this section, the term `congressional intelligence 
     committees' means the Permanent Select Committee on 
     Intelligence of the House of Representatives and the Select 
     Committee on Intelligence of the Senate.''; and
       (2) in the table of contents in the first section, by 
     inserting after the item relating to section 111 the 
     following new item:

``Sec. 112. Authorization following a terrorist attack upon the United 
              States.''.

     SEC. 14. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO 
                   IMMINENT THREAT.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is further amended--
       (1) by adding at the end of title I the following new 
     section:


                 ``AUTHORIZATION DUE TO IMMINENT THREAT

       ``Sec. 113.  (a) In General.--Notwithstanding any other 
     provision of law, but subject to the provisions of this 
     section, the President, acting through the Attorney General, 
     may authorize electronic surveillance without an order under 
     this title to acquire foreign intelligence information for a 
     period not to exceed 90 days if the President submits to the 
     congressional leadership, the congressional intelligence 
     committees, and the Foreign Intelligence Surveillance Court a 
     written notification that the President has determined that 
     there exists an imminent threat of attack likely to cause 
     death, serious injury, or substantial economic damage to the 
     United States. Such notification--
       ``(1) shall be submitted as soon as practicable, but in no 
     case later than 5 days after the date on which the President 
     authorizes electronic surveillance under this section;
       ``(2) shall specify the entity responsible for the threat 
     and any affiliates of the entity;
       ``(3) shall state the reason to believe that the threat of 
     imminent attack exists;
       ``(4) shall state the reason the President needs broader 
     authority to conduct electronic surveillance in the United 
     States as a result of the threat of imminent attack;
       ``(5) shall include a description of the foreign 
     intelligence information that will be collected and the means 
     that will be used to collect such foreign intelligence 
     information; and
       ``(6) may be submitted in classified form.
       ``(b) Subsequent Certifications.--At the end of the 90-day 
     period described in subsection (a), and every 90 days 
     thereafter, the President may submit a subsequent written 
     notification to the congressional leadership, the 
     congressional intelligence committees, the other relevant 
     committees, and the Foreign Intelligence Surveillance Court 
     that the circumstances of the threat for which the President 
     submitted a written notification under subsection (a) require 
     the President to continue the authorization of electronic 
     surveillance under this section for an additional 90 days. 
     The President shall be authorized to conduct electronic 
     surveillance under this section for an additional 90 days 
     after each such subsequent written notification.
       ``(c) Electronic Surveillance of Individuals.--The 
     President, or an official designated by the President to 
     authorize electronic surveillance, may only conduct 
     electronic surveillance of a person under this section if the 
     President or such official determines that--
       ``(1) there is a reasonable belief that such person is 
     communicating with an entity or an affiliate of an entity 
     that is reasonably believed to be responsible for imminent 
     threat of attack; and
       ``(2) the information obtained from the electronic 
     surveillance may be foreign intelligence information.
       ``(d) Minimization Procedures.--The President may not 
     authorize electronic surveillance under this section until 
     the Attorney General approves minimization procedures for 
     electronic surveillance conducted under this section.
       ``(e) United States Persons.--Notwithstanding subsections 
     (a) and (b), the President may not authorize electronic 
     surveillance of a United States person under this section 
     without an order under this title for a period of more than 
     60 days unless the President, acting through the Attorney 
     General, submits a certification to the congressional 
     intelligence committees that--
       ``(1) the continued electronic surveillance of the United 
     States person is vital to the national security of the United 
     States;
       ``(2) describes the circumstances that have prevented the 
     Attorney General from obtaining an order under this title for 
     continued surveillance;
       ``(3) describes the reasons for believing the United States 
     person is affiliated with or in communication with an entity 
     or an affiliate of an entity that is reasonably believed to 
     be responsible for imminent threat of attack; and
       ``(4) describes the foreign intelligence information 
     derived from the electronic surveillance conducted under this 
     section.
       ``(f) Use of Information.--Information obtained pursuant to 
     electronic surveillance under this subsection may be used to 
     obtain an order authorizing subsequent electronic 
     surveillance under this title.
       ``(g) Definitions.--In this section:
       ``(1) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives and the Select Committee on Intelligence of 
     the Senate.
       ``(2) Congressional leadership.--The term `congressional 
     leadership' means the Speaker and minority leader of the 
     House of Representatives and the majority leader and minority 
     leader of the Senate.
       ``(3) Foreign intelligence surveillance court.--The term 
     `Foreign Intelligence Surveillance Court' means the court 
     established under section 103(a).
       ``(4) Other relevant committees.--The term `other relevant 
     committees' means the Committees on Appropriations, the 
     Committees on Armed Services, and the Committees on the 
     Judiciary of the House of Representatives and the Senate.''; 
     and
       (2) in the table of contents in the first section, by 
     inserting after the item relating to section 112, as added by 
     section 13(2), the following new item:

``Sec. 113. Authorization due to imminent threat.''.

     SEC. 15. TECHNICAL AND CONFORMING AMENDMENTS.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is further amended--
       (1) in section 105(a)(4), as redesignated by section 
     6(1)(B)--
       (A) by striking ``104(a)(7)(E)'' and inserting 
     ``104(a)(7)(D)''; and
       (B) by striking ``104(d)'' and inserting ``104(c)'';
       (2) in section 106(j), in the matter preceding paragraph 
     (1), by striking ``105(e)'' and inserting ``105(d)''; and
       (3) in section 108(a)(2)(C), by striking ``105(f)'' and 
     inserting ``105(e)''.

  The SPEAKER pro tempore. Debate shall not exceed 90 minutes, with 60 
minutes equally divided and controlled by the chairman and ranking 
minority member of the Committee on the Judiciary, and 30 minutes 
equally divided and controlled by the chairman and ranking member of 
the Permanent Select Committee on Intelligence.
  The gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman 
from Michigan (Mr. Conyers) each will control 30 minutes, and the 
gentleman from Michigan (Mr. Hoekstra) and the gentlewoman from 
California (Ms. Harman) each will control 15 minutes.
  The Chair recognizes the gentleman from Wisconsin.


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 5825, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.

[[Page 20602]]

  Mr. Speaker, I rise in strong support of H.R. 5825, the Electronic 
Surveillance Modernization Act. In 1978, Congress enacted the Foreign 
Intelligence Surveillance Act, or FISA for short, in order to provide a 
mechanism for the domestic collection of foreign intelligence 
information.
  The goal of FISA was to secure the integrity of the fourth amendment 
while protecting the national security interests of the United States. 
When FISA was enacted, domestic communications and international 
communications were fundamentally different from one another. 
Specifically, domestic communications were transmitted via wire, while 
international communications were transmitted via radio.
  In modern times international communications are increasingly 
transmitted through undersea cables which are considered wire. H.R. 
5825 provides a technology-neutral definition of electronic 
surveillance to ensure that international communications are treated 
the same under the law regardless of the technology used to transmit 
them.
  The bill also simplifies the process for getting a FISA court order 
and returns the focus of FISA to protecting those with a fourth 
amendment expectation of privacy.
  On December 16 of last year, based on the leak of classified 
information, the New York Times published a story regarding a terrorism 
surveillance program operated by the National Security Agency. The 
President subsequently acknowledged that he had authorized this program 
after 9/11 to intercept the international communications of those with 
known links to al Qaeda and related terrorist organizations.
  Notwithstanding the administration's position that this program is 
fully consistent with U.S. law and the Constitution, the President has 
requested that Congress provide additional and specific authorization 
to ensure that U.S. laws governing electronic surveillance are updated 
to reflect modern modes of communication.
  Mr. Speaker, terrorist organizations are global in scope, and rely on 
electronic communications to plan and execute their murderous designs. 
We can all agree that electronic communications must not be impervious 
to detection by U.S. law enforcement intelligence officers whose 
vigilance has helped avert another terrorist attack on our soil in the 
5 years since the 9/11 attacks.
  As General Hayden testified on July 26, 2006, the National Security 
Agency intercepts communications and does so for only one purpose: ``To 
protect the lives, liberties and well beings of the citizens of the 
United States from those who would do us harm.''
  General Hayden also noted that ``the revolution in telecommunications 
technology has extended the actual impact of the FISA regime far beyond 
what Congress could ever have anticipated in 1978, and I do not think 
that anyone can make a claim that the FISA statute was optimized to 
deal with 9/11 or to deal with the lethal enemy who likely already had 
combatants inside the United States.''
  Mr. Speaker, H.R. 5825 updates FISA to reflect modern technology and 
the changing nature of the terrorist threat. This legislation combines 
the Judiciary Committee's provisions that streamline the FISA process 
with the Intelligence Committee provisions that provided the President 
much needed statutory flexibility to conduct surveillance of foreign 
communications.
  This legislation responds to the urgent need to provide our Nation's 
law enforcement intelligence communities with 21st-century tools to 
meet and defeat a 21st-century threat.
  It is crucial to improving our national efforts to detect and disrupt 
acts of terrorism before they occur on American soil. This bill is the 
product of extensive discussion and thoughtful deliberation. It will 
make America safer while safeguarding American civil liberties.
  Mr. Speaker, I urge support of this vital legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, ladies and gentlemen of the House, let me state from the 
outset that we support our government intercepting each and every 
conversation involving al Qaeda and its supporters. But I cannot 
support legislation that not only fails to bring the warrantless 
surveillance program under the law, but dramatically expands the 
administration's authority to conduct warrantless surveillance on 
innocent Americans.
  This is the Bush bill. It is amazing to me that we would even be 
taking up a law that fails to regulate the present domestic spying 
program. Nearly 9 months after we first learned from the New York Times 
that there was a warrantless surveillance program going on, and we did 
not know it until then, there has been no attempt to conduct an 
independent inquiry into its legality.

                              {time}  1945

  Not only has the Congress failed to conduct any sort of 
investigation, but the administration summarily rejected all requests 
for a special counsel or Inspector General review, and when the Office 
of Professional Responsibility finally opened an investigation, the 
President of the United States himself squashed it by denying the 
investigators security clearances.
  Now, since 1978, there have been 12 amendments to this bill, 51 
different changes. So let us not start off acting as though there have 
never been changes here before.
  What we are doing, instead of restricting the administration and the 
National Security Agency, this bill grants the administration more and 
new authority to conduct warrantless surveillance of American citizens. 
Not only does the bill permit warrantless surveillance of the 
international communications of any American who is not a target, but 
it grants the administration new authority to conduct warrantless 
surveillance on domestic calls in many new circumstances.
  We do not like this measure before us because, instead of bringing 
the President's warrantless surveillance program under the law, what 
has been done, without much finesse, is to dramatically expand his 
authority and permit even broader and more intrusive warrantless 
surveillance of the program and the phone calls and the e-mails of 
innocent Americans.
  It raises severe constitutional questions, the fourth amendment and 
the equal protection of agencies and subjects everything in this area 
to ill-considered and unfair process.
  But it is not just the law professors and the civil liberty unions 
that are supporting it. We have here a statement from former national 
security officials, and I will insert the statement of former national 
security officials in the Record at this time.

            Statement of Former National Security Officials

       The President has spoken repeatedly and emotionally in 
     recent days about the need for intelligence professionals to 
     have clarity in the law. He has emphasized that it is not 
     fair to ask these men and women to operate in an uncertain 
     legal environment and that, in fact, legal uncertainty 
     hampers operational effectiveness and thereby jeopardizes our 
     national security. Yet legal uncertainty is exactly what will 
     result if Congress heeds the President's call to enact 
     legislation that replaces the obligation to use the 
     procedures of the Foreign Intelligence Surveillance Act with 
     broad language about relying upon the President's 
     constitutional authority.
       Before FISA was enacted, courts addressed the issue of 
     warrantless surveillance for domestic security purposes but 
     did not clearly resolve the scope of the President's 
     authority regarding foreign intelligence surveillance. FISA 
     was enacted in order to clarify this murky legal area by 
     setting forth a clear process for electronic surveillance of 
     foreign powers and agents of foreign powers. The Executive 
     Branch welcomed the clarity and this law has been viewed as 
     an essential national security tool for 28 years.
       This legislation would return a complex subject to the 
     murky waters from which FISA emerged by making going to the 
     FISA court or applying FISA in any way optional rather than 
     mandatory. It leaves it to the President to decide when he 
     has the authority to conduct warrantless surveillance of 
     Americans or foreigners. Whether he has made the right 
     determination will not be known unless and until it is 
     challenged in court.
       If advances in technology or other exigencies not 
     contemplated in FISA present the

[[Page 20603]]

     President with a national security emergency, he should have 
     a window in which to act while promptly seeking appropriate 
     amendments to FISA--and this could be provided for in the 
     statute. But this extraordinary emergency authority should 
     not be permitted effectively to repeal FISA.
       FISA was a political compromise between the Legislative and 
     Executive branches of government; unforeseen exigencies 
     should require those branches of government to continue to 
     coordinate, not condone unilateralism by either branch. 
     Indeed, the world has become so much more complex, both 
     technologically and socially, than it was in 1978, that 
     making FISA optional rather than mandatory would 
     significantly destabilize the balance struck then between law 
     and policy.
       As individuals with extensive experience in national 
     security and intelligence, we strongly urge that the 
     requirements of FISA remain just that--requirements, not 
     options. Congress should continue to work to get the facts 
     and if, once they are provided, these facts demonstrate the 
     need for changes in the law, amend it only as needed to meet 
     genuine national security imperatives. Legal clarity is just 
     as essential in this context as any other in which 
     intelligence or law enforcement officers are asked to 
     operate. FISA provides that clarity and should not be 
     abandoned or amended in ways that render it irrelevant.
       Ken Bass
       Formerly Counsel for Intelligence Policy, Department of 
     Justice
       Eugene Bowman
       Formerly Deputy General Counsel, Federal Bureau of 
     Investigation
       Mary DeRosa
       Formerly Special Assistant to the President
       Formerly Legal Advisor, National Security Counsel
       Juliette Kayyem
       Formerly Member, National Commission on Terrorism (The 
     Bremer Commission)
       Formerly Legal Advisor to the Attorney General, Department 
     of Justice
       Elizabeth Larson
       Formerly Senior Staff, House Pennanent Select Committee on 
     Intelligence
       Formerly Senior Executive, Central Intelligence Agency
       Elizabeth Rindskopf Parker
       Formerly General Counsel, National Security Agency
       Formerly General Counsel, Central Intelligence Agency
       F. Whitten Peters
       Formerly Secretary of the Air Force
       Formerly Principal Deputy General Counsel, Department of 
     Defense
       Stephen Saltzburg
       Formerly Deputy Assistant Attorney General, Criminal 
     Division, Department of Justice
       William S. Sessions
       Formerly Director, Federal Bureau of Investigation
       Formerly Chief United States District Judge for the Western 
     District of Texas
       Michael A. Smith
       Formerly Assistant General Counsel, National Security 
     Agency
       Brit Snider
       Formerly General Counsel, Senate Select Committee on 
     Intelligence
       Formerly Inspector General, Central Intelligence Agency
       Suzanne E. Spaulding
       Formerly General Counsel, Senate Select Committee on 
     Intelligence
       Formerly Assistant General Counsel, Central Intelligence 
     Agency
       Michael A. Vatis
       Formerly Director, National Infrastructure Protection 
     Center, Federal Bureau of Investigation
       Formerly Associate Deputy Attorney General, Department of 
     Justice

  I lift up the names of two people in particular: William Sessions, 
the former Director of the Federal Bureau of Investigation, formerly 
Chief Judge of the Western District of Texas; and William H. Webster, 
formerly Director of the Federal Bureau of Investigation and former 
Director of the Central Intelligence Agency.
  There is a wide agreement that this legislation is not what we should 
be doing. It should be rejected because we are giving the 
administration unilateral authority to review the call records and e-
mails of millions of Americans and permits the administration to use 
surveillance devices without cause, thereby reinstituting the 
discredited ``total information awareness'' program that kept records 
on hundreds of millions of Americans.
  Hidden in the fine print are provisions which grant the 
administration authority to maintain permanent records on innocent 
American citizens, granting the administration new authority to demand 
personal records without court review, and terminating any and all 
legal challenges to unlawful wiretapping.
  So we are joined in our position by the Computer and Communications 
Industry Association, including Microsoft, Verizon, Google and Intuit; 
law school deans, 63 of them; 13 former national security officials; 
the Center for Democracy and Technology; and the Center for National 
Security Studies.
  We must fight terrorism, but we must fight it in the right way, 
consistent with our Constitution and in a manner that serves as a model 
for the rest of the world. This bill fails that test.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, my speakers are on their way to the 
floor, and I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman 
from New York (Mr. Nadler), ranking subcommittee member.
  Mr. NADLER. Mr. Speaker, I rise in opposition to this dangerous and 
unnecessary legislation. Dangerous because it threatens the fundamental 
rights all Americans hold dear, and unnecessary because the sponsors 
appear to believe that freedom is the enemy.
  The right to engage in surveillance of communications is not at issue 
today. What is at issue is the right to spy on Americans in the United 
States without a warrant from a court.
  Nowhere under current law is there any requirement that the 
government stop listening to terrorists until they get can a court 
order. Existing law gives the government 72 hours after it has begun 
surveillance to get a warrant from the secret FISA court.
  Our colleagues, the gentleman from California (Mr. Schiff) and the 
gentleman from Arizona (Mr. Flake), have proposed to extend that time 
so the government has more time to make its case; and they have 
proposed to update the FISA law so as to make it unnecessary to get a 
warrant to tap a conversation between two persons outside the United 
States, even if the conversation is routed through the United States. 
That proposal solves all the legitimate concerns with FISA.
  It is so reasonable a proposal that this Republican rubber-stamp 
Congress refused to let us even get a vote on it. It is not surprising 
that the process of taking away liberty should trample on democracy as 
well.
  What the President wants, and the Republican Congress is prepared to 
give, is unrestrained authority to spy on anyone, without having to 
answer to anyone. Once again, the President wants to be above the law, 
and this House appears ready to oblige him.
  The power to use every tool we have to gain as much intelligence on 
the terrorists as we can is a vitally important power, and we support 
that power as long as it is constrained by law.
  It is also a dangerous and easily abused power. We have plenty of 
experience with the abuse of that power. Remember J. Edgar Hoover 
wiretapping Martin Luther King, for example. That is why we have a 
Constitution. That is why we have courts. That is why we have checks 
and balances. That is why we have legal controls on the executive 
branch, not to protect the bad guys but to protect the rest of us from 
abuses of power.
  Unchecked power, no matter what the purpose is dangerous. It is also 
unnecessary. History will judge this Congress harshly when this 
inevitably bad bill is approved.
  Do not be stampeded into signing away our freedom. Let us insist that 
this be done right, by rejecting this very wrong and dangerous bill and 
considering the very reasonable alternative given to us by the 
bipartisan gentlemen, Mr. Schiff and Mr. Flake.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from New Mexico (Mrs. Wilson), the author of the bill.
  Mrs. WILSON of New Mexico. Mr. Speaker, I think it is important for 
people to understand tonight why we are doing this.
  I believe very strongly that intelligence is the first line of 
defense in the war on terrorism. That means we have to have 
intelligence agencies and capabilities that are agile, that are 
responsive to changes in technology, and that also protect the civil 
liberties of Americans.

[[Page 20604]]

  It is hard to understand and hard to explain, frankly, the FISA law 
to people who do not deal day in and out with these things, but I have 
got to tell you this is how I have tried to explain it.
  I live in New Mexico very near Route 66. Route 66 is the mother road 
that went from Chicago to LA through every little town along the way. 
But then modernization came along, and we replaced Route 66 with 
Interstate 40. We no longer have the stoplights and the intersections. 
We created on ramps and off ramps and concrete barriers to protect the 
citizens where traffic was moving very, very quickly. That is kind of 
like what we are trying to do here with the Foreign Intelligence 
Surveillance Act.
  Now, it bothers me a little bit that for 4 years Democrat leaders in 
this House, including the minority leader and the ranking member of the 
Intelligence Committee, were briefed on the President's terrorist 
surveillance program multiple times, and now, when I come to the floor 
of the House with a bill that proposes putting signs and rules of the 
road in place to protect American civil liberties, you object to the 
controls and protections. If there were concerns about the fourth 
amendment, those concerns should have been raised 4 years ago.
  The fourth amendment requires that people in America be free from 
unreasonable search and seizure. We have set in place rules of the road 
in the wake of a terrorist attack, when there is an armed attack on the 
United States or when an attack is imminent on the United States, rules 
of the road that are reasonable, that are constitutional, that protect 
civil liberties and that also keep us safe in the event of terrorist 
attack.
  Mr. CONYERS. Mr. Speaker, I am pleased to yield 2 minutes to the 
gentleman from Virginia (Mr. Scott), a member of the Judiciary 
Committee.
  Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to the 
legislation.
  First, we are legislating in the dark. We do not even know what the 
President is doing now because he will not tell us, but we do know that 
he says he will not continue doing what he is doing unless we 
retroactively authorize it and immunize everyone who participated in 
the illegal activity from any criminal and civil liability.
  But for the New York Times disclosure that the administration had 
authorized secret surveillance of domestic conversations, we would not 
even know about it now. When exposed, the President claimed he was 
operating under inherent powers, but court decisions have found that 
the President cannot simply declare administration actions 
constitutional and lawful, whether or not they are.
  Yet rather than finding out what is going on, we are moving forward 
with this legislation not only to authorize something in the future but 
to retroactively legalize whatever has been going on in the past.
  Yesterday, under the military tribunal bill, we authorized what had 
previously been considered torture and retroactively immunized 
everybody involved in it. Today, we do the same type of retroactive 
approval and immunization to what may be illegal domestic surveillance.
  The President already has broad latitude to conduct domestic 
surveillance, including surveillance of American citizens under the 
Foreign Intelligence Surveillance Act, totally in secret, so long as it 
is overseen by the FISA court.
  So this is not a question of whether or not dangerous terrorists 
should be wiretapped. Of course they should, and they can be under 
present law, but in a democratic society with checks and balances, we 
should insist that some checks and balances occur, either before the 
wiretap or after the wiretap in the case of an emergency.
  This bill does not enhance security, but it does allow surveillance 
without the traditional checks and balances that have served our Nation 
well. This bill, therefore, should be defeated.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman 
from California (Mr. Daniel E. Lungren).
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the 
gentleman for yielding.
  Mr. Speaker, I am not sure what bill I just heard referred to. As I 
read this bill, as one of those who helped to write this bill, we have 
time limits in this bill. We have notices in this bill. We have 
requirements in this bill. This bill attempts to do what we should want 
to do, that is, base it on the expectation of privacy of the individual 
involved.
  This bill attempts to try and bring up to date the FISA law, a law 
that was established at a time when technology was far different than 
it is today. This is an attempt to try and bridge that gap that was 
created as a result of technology changing.
  We set into motion by the law when FISA was first established and in 
accordance with those technologies which were then available. This is 
an attempt to allow us to still secure that kind of information that 
was always allowed under the FISA law, always anticipated to be under 
the FISA law, but which might be brought into question by the change in 
technology which has taken place.

                              {time}  2000

  It also attempts to try and deal with that tension I mentioned before 
that exists as a result of the constitutional powers that the President 
has, that we have, and that the judicial branch has and in an area of 
law where for many years, since the beginning of this Republic, the 
Supreme Court has found that the President has not exclusive, but 
preeminent, power or preeminent authority.
  And there is a reason for this. It is the reason Benjamin Franklin 
talked about in the quote I gave earlier this evening. It is the reason 
for the kind of functions that take place in a war-time scenario. It is 
a recognition that you can have one Commander in Chief and that one 
Commander in Chief has, as part of his responsibility, the requirement 
to be able to obtain intelligence about the enemy, intelligence about 
the foreign power.
  So the question is, How do you construct a law which allows the 
President to exercise that responsibility and at the same time allows 
us to exercise our responsibility? There seems to be this idea where we 
say that there is an inherent power in the President, but then we don't 
recognize it at all. Or if he acts, and acts pursuant to that 
constitutional provision, what he has done is unconstitutional and 
illegal. And we therefore say, when we try to construct a law which we 
hope will cover most of the areas of activity by the President, where 
it will engender a greater spirit of cooperation, we say that what he 
did or if he asserts that authority, somehow that is unlawful or 
unconstitutional.
  We have prerogatives in the House of Representatives. There are areas 
of cooperation. There are areas where we have preeminent power, such as 
the House of Representatives is given the responsibility and the 
authority to begin any law which would take money from the pockets of 
our constituents. The President of the United States cannot do that 
under the Constitution, yet he does work with us in that regard, in 
many different ways even before he gets the final bill.
  What we have done here is to try to set up a structure which calls 
for the kind of activity that will be reported to us on a regular 
basis, with time requirements that don't exist in current law today. It 
circumscribes some of the activities that otherwise are questionable 
right now, and it sets up a framework for cooperation, it seems to me.
  So I hear a lot of, and I have used this word before, but hyperbole 
here on the floor. We have men and women of good will on both sides of 
the aisle that have differences of opinion on this. But to condemn this 
as somehow an effort for us to give away our power; that somehow this 
allows the President to continue to act in an illegal way or to cover 
up previous illegal activity betrays a lack of understanding of the 
Constitution, of the structure of this House, and of activity of prior 
administrations, both Democrat and Republican.
  I would ask us all to support this well-crafted bill.

[[Page 20605]]


  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to a distinguished 
member of the committee, Mr. Schiff.
  Mr. SCHIFF. I thank the gentleman for yielding.
  My colleague from California is right, we do have reasonable 
differences of opinion on this legislation. Regrettably, we won't get a 
chance to vote on them. The bipartisan substitute that I offered with 
Mr. Flake will not be permitted to come up for a vote tonight.
  Let us look at where we are. It is 5 years since 9/11. And in those 5 
years, the Justice Department, the NSA have not come to Congress to ask 
for the changes that are being proposed by this bill. Indeed, but for 
the fortuity of the disclosure of the secret program by the New York 
Times, we wouldn't be here at all. That says something about the 
efficacy of the current law and the current FISA court.
  Now, I happen to think the FISA laws can be improved. We have amended 
them, though, in 25 different ways over the last several years, so it 
is not as if this 28-year-old act has been untouched. The question 
here, the rub here is not what we do with foreigners who are talking to 
other foreigners on foreign soil, as my colleagues in the majority 
would like us to believe. The rub here is what do we do about Americans 
on American soil.
  Do we want to entrust to the government and say you can surveil an 
American here at home without any court supervision? We are going to 
take entire programs off the books. We are going to embody a philosophy 
that says to the government, we trust you. We don't need a check and 
balance. My colleague says that the transportation analogy would be 
rules of the road. Well, the more accurate analogy would be if we had a 
speed limit sign and people were racing past it and violating the speed 
limit, the base bill would say, tear down the sign or do away with the 
court that would enforce the law by stripping the court of the 
jurisdiction to review the program.
  That is not what we are here to do. We are here to say to the 
American people that those that wish us harm we will go after with 
every tool. But you, who are law-abiding citizens of this country, have 
a reasonable expectation of privacy in your homes and we will respect 
that. When we intrude your home and your phone and your e-mail, you 
will have the confidence of knowing that a court is overseeing what the 
government does.
  Because the Framers' philosophy was check and balance. It served us 
well for 200 years. It will continue to serve us well.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Arizona (Mr. Flake).
  Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding, and I 
appreciate the gentleman from California and the opportunity to work 
with him on the substitute.
  Mr. Speaker, I rise today in opposition to H.R. 5825. In 1978, 
Congress passed a seminal piece of legislation called FISA. This act 
recognized that while the President has inherent authority to protect 
American citizens, Congress has clear authority to regulate that 
surveillance.
  There have been many technological changes over the past 28 years, 
and FISA has been amended many times to adapt to those changes. But, 
now, we here in Congress are confronted with the knowledge that the 
executive branch has chosen to conduct surveillance outside of the 
strictures of FISA. We must now choose whether to allow warrantless 
surveillance to continue or whether we should bring the terrorist 
surveillance program and any other programs that might be in operation 
under FISA's authority. If we do not, we will essentially have two 
categories of surveillance programs: one on the books and one that is 
off the books.
  Now, perhaps the existence of FISA has made us all complacent. We 
have not been confronted for the past three decades with reports of 
executive branch abuse. But prior to FISA's passage, such abuses were 
legion. The Church Commission of the mid-1970s identified instances of 
abuse of the executive branch surveillance power that were so egregious 
that they thought it necessary to bring in FISA.
  Do we want to return to the pre-FISA era? I would submit that we 
should not. Yet the bill we will vote on tonight will ensure that 
surveillance will continue to be gathered outside of FISA, effectively 
returning us to that era.
  As I have said before, the acid test for Republicans should be as 
follows: Would I more jealously guard the congressional prerogative to 
regulate the President's inherent authority to conduct warrantless 
surveillance if the current occupant of the White House did not share 
my party affiliation? If the answer is yes, then it is our obligation 
to vote against the underlying bill and to vote instead for the motion 
to recommit.
  Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the 
distinguished gentleman from Maryland (Mr. Van Hollen).
  Mr. VAN HOLLEN. I thank my colleague, Mr. Speaker.
  Let us be clear about one thing. As we have all said, we understand 
that electronic surveillance is a vital tool in the war on terror. We 
all want to know when Osama bin Laden is calling: when he is calling, 
who he is calling, and what he is saying. Existing law, FISA, gives the 
President the authority to do that. And if the President wants greater 
flexibility in using that authority, he should come to the Congress and 
tell us exactly what additional authority he needs.
  As has been said, this Congress has already amended FISA, the 
electronic surveillance law, more than 25 times since 9/11 to 
accommodate changing technologies. That is why it was so troubling to 
learn that what we as a Congress did in the PATRIOT Act with respect to 
electronic surveillance was essentially a meaningless exercise. We gave 
the President expanded authorities, but the President has since argued 
that he can go beyond the expanded authorities that we gave him, and he 
has ignored the work of the Judiciary Committee and this Congress.
  On what basis does he do this? This President claims when it comes to 
conducting electronic surveillance he is, in the final analysis, not 
constrained by the laws passed by this Congress. He claims his 
constitutional authority as Commander in Chief under article II in this 
area ultimately allows him to ignore the will of the Congress.
  Take a look at the administration's legal memorandum of January 19, 
2006. Essentially, they say that we don't have the power ultimately to 
regulate in this area. And I find it incredibly curious that after the 
Judiciary Committee, on a bipartisan basis, adopted language proposed 
by Mr. Flake that simply said Congress finds that article I, section 8, 
clause 18 of the Constitution, known as the necessary and proper 
clause, grants Congress clear authority to regulate the President's 
inherent power to gather foreign intelligence. That was passed on a 
bipartisan basis. It is gone from this bill. Mr. Flake's amendment is 
gone from this bill. That is taken out of this bill.
  Now, imagine, here we are as a Congress, in passing a law that seeks 
to regulate the President's authority in this area, albeit giving him 
additional authorities, that in passing that law we strip out the 
provision that says we as a Congress find that we have the power to 
regulate in this area. It is a total abdication of congressional 
responsibility. It is ceding the President's argument that Congress 
doesn't matter in this area.
  I believe, ultimately, it is a dangerous power grab on behalf of the 
administration; and this Congress, on a bipartisan basis, has not stood 
up to our responsibilities under the Constitution.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Texas (Mr. Gohmert).
  Mr. GOHMERT. Mr. Speaker, I am grateful to our chairman.
  This is critical. We are in a war with people who want to destroy our 
way of life. Now, we are rightfully concerned about the civil rights of 
Americans, but the thing is this doesn't have to do with the civil 
rights of Americans. If the President, or any President, I don't care 
who it is, would authorize wiretapping surveillance of American to 
American, then I will be right here

[[Page 20606]]

with anybody else calling them to task. That is not what we are about 
here.
  And, in fact, in this act, it actually updates the definition of who 
is covered under FISA to ensure that electronic surveillance is 
narrowly focused on America's enemies. That is part of what is so 
important here.
  Another aspect that makes this even more crucial today: some have 
said, why now? Why today? Is this all for politics? Well, I don't know. 
The question is, when a Federal judge in Detroit strikes this down, who 
was hand picked, let's face it. As I understand, there were 30 lawsuits 
filed around the country, so that as soon as the ACLU and most liberal 
folks got the judge they wanted from the draw in each of those 
jurisdictions, they dismissed all the others and got the most liberal 
judge they could get. That is inappropriate. That is not justice. This 
is putting our Nation at risk. This is something we have to do now.
  Some have said, well, gee doesn't it really affect the rights of 
Americans? And the answer is no, not unless you are dealing directly 
with a foreign terrorist. This is not about domestic to domestic, 
American to American.
  We have heard some on the other side bring up scripture, that we need 
to do unto others, even if they are not Americans. We need to do unto 
others, I would submit to you, and I love it when people call on 
scripture like my brothers and sisters from the other side of the 
aisle, because it brought to mind to me Romans 13-4 that says, ``for 
it,'' the government, ``is a servant of God for your good. But if you 
do evil, be afraid. For the government does not bear the sword without 
purpose. It is the servant of God to inflict wrath on the evildoer.'' 
So if we want to invoke ``do unto others,'' let's look at the rest of 
the verses and get it in context.
  Individually, should we go after people who are after our country? 
Absolutely not. That is inappropriate. But the government, which is us, 
has not only an obligation, but we have the critical duty to make this 
happen.
  So I would humbly submit that because we have rogue Federal judges 
out there who will do their will to destroy this administration, or any 
administration's effort to protect us, we have to do our job.

                              {time}  2015

  We have got to make sure that this government does deal with evil, 
does deal with those who seek to destroy us, and, yes, put them under 
surveillance; not Americans but foreigners, because that is our job. 
That is what we are required to do. That is what I swore to do when I 
joined the Army, when I swore to defend the Constitution against all 
enemies, foreign and domestic. That is what we still have got to do.
  Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman 
from Texas, Ms. Sheila Jackson-Lee, a distinguished member of the 
Committee on the Judiciary.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, in recognition of the Federal 
judiciary, I know that as they take an oath of office that their 
commitment is to serve the American people and the United States of 
America with the dignity and respect of that office. It has not come to 
my attention there are any number of ``rogue judges'' that would 
undermine the Constitution. But I do believe that it is crucial that 
the facts of this debate be established and why there is such 
opposition to an initiative that deals with the security of America.
  There is no divide, I have said this, I think, on any number of 
occasions, on the commitment of members of the Democratic Caucus on 
securing America. In fact, there are any number of experts who have 
engaged in the issues of security and intelligence for a very long 
period of time.
  But, frankly, we are arguing against the broad brush that this 
Congress has now given to the Bush administration, and the Bush 
administration has made no convincing case to Congress justifying the 
need to change the law and to satisfy Congress, nor has Congress been 
able to satisfy itself that any recommended changes would be 
constitutionally permissible.
  Chairman Hoekstra said that Congress simply should not have to play 
20 questions to get the information that it deserves under our 
Constitution. That is the chairman of the Intelligence Committee.
  Frankly, I think it is important to note that the President, this 
administration, has not identified any technological barriers to the 
operation of FISA. I believe in modernizing it. However, most of the 
legislative proposals to amend FISA do not attempt to modernize the 
law, but rather erode the fourth amendment protection, since available 
technology allows the interception of more communications.
  Let me tell you what happens in this legislation. First of all, there 
is an opportunity to drag in the innocent. This new bill could drag in 
journalists and foreign workers of high-tech companies. This bill, for 
example, radically lifts the universe of warrantless searches. It 
drastically amends existing definitions in a manner that will permit 
government to retain indefinitely information collected on Americans.
  This is about protecting Americans with this broad brush. This is 
about not going back to McCarthyism. This is about making sure that we 
secure us within our borders, northern and southern and otherwise, but 
it is to say do not turn us into terrorizing ourselves.
  The fourth amendment has not been abolished. This could have been 
amended in collaboration with our colleagues to protect civil 
liberties, the 4th Amendment, and to secure America. This is a rush to 
the election. I ask my colleagues to oppose this legislation.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman 
from Arizona (Mr. Franks).
  Mr. FRANKS of Arizona. Mr. Speaker, I thank the chairman.
  Mr. Speaker, in the very simplest of terms, the strategic goal of 
terrorists in this war is to be able to hide from justice long enough 
to be able to gain access to weapons of mass destruction with which 
they can radically alter the future of American freedom for generations 
to come. The strategic challenge that we face is in finding and 
defeating terrorists before they gain access to such weapons and 
proceed to achieve their horrifying goal.
  It is obvious that the critical factor in all of this effort is 
intelligence, for if we knew where every terrorist in the world was at 
this moment, we could destroy nearly all of them in less than 60 days.
  But, Mr. Speaker, we have been held back by liberals in this country. 
Every effort the President has made to gain such intelligence has been 
resisted.
  We should consider the terrorists' own words if we doubt their 
commitment to strike this country in the most horrendous way possible. 
Osama bin Laden said many years ago, ``It is our religious duty to gain 
nuclear weapons.'' Hezbollah's Nasrallah said of America, ``Let the 
entire world hear me. Our hostility to the Great Satan is absolute. 
Regardless of how the world has changed after September 11, death to 
America will remain our reverberating and powerful slogan. Death to 
America.''
  Terrorists, Mr. Speaker, believe that they have a critical advantage 
over the free people of the world. They believe their will is far 
stronger than ours and that they need only to persevere to break our 
resolve.
  Mr. Speaker, the message of liberals in this country has only 
encouraged terrorists in that belief. If we fail to use our best and 
critical intelligence mechanisms to fight and defeat terrorists in 
these critical days, our children and grandchildren will pay an 
unspeakable price, and history will condemn this generation for such 
profound irresponsibility in the face of such an obvious threat to 
human peace.
  We need to pass this bill, Mr. Speaker.
  Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the 
gentlewoman from California (Ms. Waters), a member of the Judiciary 
Committee.
  Ms. WATERS. Mr. Speaker, if there is one thing the American people 
know, they know that America has a Constitution that protects us from 
being spied on by our government. Everything about this bill makes a 
mockery

[[Page 20607]]

of the Constitution of the United States of America. This 
administration has literally thrown the Constitution out the window.
  In committee markup, the majority jammed a substitute amendment down 
our throats that basically undermines that part of the Foreign 
Intelligence Surveillance Act that requires that the administration get 
a warrant before eavesdropping on American citizens. Now the majority 
is jamming another Republican substitute or comprehensive amendment 
down the throats of the American people by considering this bill under 
what is known as a closed rule, which prohibits Democrats from offering 
any changes or amendments.
  As we grapple with the war on terrorism, the constitutional power of 
the President has been stretched until it cannot be stretched anymore, 
from the use of force executed against Iraq, to the initiation of a 
warrantless surveillance program that targets innocent Americans.
  In April, the U.S. Attorney General told the Judiciary Committee that 
even if that authorization to use military force resolution were 
determined not to provide the legal authority for the program that the 
President's inherent authority to authorize foreign intelligence 
surveillance would permit him to authorize the terrorist surveillance 
program.
  The imperial President can do whatever he wants. Mr. President, Mr. 
Attorney General, Mr. Chairman, why then do we need this legislation?
  The President illegally and unconstitutionally authorized the 
wholesale collection of domestic communications, and now the majority 
wants to give him legislative permission. This is not fair or honest.
  This bill broadens the scope of those the President can monitor, so 
innocent people can be violated so long as the surveillance is directed 
at so-called ``one permissible target.'' It also removes one of the 
central requirements for conducting warrantless surveillance, one that 
provides the most protection to the American people. And, as FISA has 
said, there is no substantial likelihood that the surveillance will 
acquire the contents of any communication to which a United States 
person is a party.
  They shouldn't be spying on us. If what the President is doing right 
now is so clearly authorized and is in the best interests of our 
Nation's security, why was this provision so troublesome? Is it clear 
that the fourth amendment rights of the American people are a burden to 
this administration? If a case is so extreme that it would take too 
long to obtain a warrant, these requirements shouldn't be difficult to 
meet.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3\1/2\ minutes to the 
gentlewoman from Connecticut (Mrs. Johnson).
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the chairman for 
yielding me time.
  Mr. Speaker, I rise today in strong support of this legislation that 
is so important to our Nation's security when a new type of warfare 
threatens our security. I appreciate the good work of my friend from 
New Mexico, my colleague Heather Wilson, to bring this bill to the 
floor, she and a number of her colleagues.
  The bill will authorize the NSA's terrorist surveillance program, 
which is truly vital to our Nation's security. Remember back to 9/11? 
We in this House ran down the street away from this Capitol because we 
were scared, and all of America was scared. Nobody knew where the next 
strike was going to hit. Nobody knew how much others had planned.
  That was September 11. On October 25, the leadership of the House and 
Senate, Democrats and Republicans, leadership and heads of the 
Intelligence Committee, met with the President and the Vice President 
to look at this program and agreed that it was necessary to our 
security, that we needed to be able to pick up the phone if there was a 
call from a terrorist number into America. We needed to know what was 
being said, and we couldn't wait.
  Ever since that October 25 date, the leadership of both parties in 
the House and Senate have routinely overseen this program. At the end 
of every meeting they came to the conclusion that what we were learning 
to keep our Nation safe was worth the targeted program that intercepted 
calls to known terrorist numbers, to numbers in the United States of 
America.
  Now, some have said here tonight we have the 72-hour application 
process under FISA to address the need to intercept such calls. FISA is 
paperwork heavy. The critical factor is not the time available to go to 
the FISA court after the emergency application, but the detailed 
requirements for information that must be definitively known before you 
can even start the emergency surveillance.
  There are 11 separate items: the identity of the target, the 
description of the target, and so it goes, all down through the 11. I 
don't have time to read all 11.
  There is paperwork filled out first by the analysts at NSA, and then 
looked at by the lawyers at NSA, and then looked at by the lawyers in 
the Department of Justice. Not only lots of paperwork, but layers of 
lawyers.
  So when my colleague from New Mexico says that we need rules of the 
road for this program that has been so crucial to our security, 
frankly, I am proud to support her.
  Let me conclude with a quote from CIA Director Michael Hayden: ``Had 
this program (the NSA surveillance) been in effect prior to 9/11, it is 
my professional judgment that we would have detected some of the al 
Qaeda operatives in the United States and we would have identified them 
as such. The NSA program allows faster movement than is possible under 
FISA.''
  It is our responsibility as leaders of this Nation to make that 
faster movement possible to defend our Nation, and to do it in harmony 
with protection of our civil rights, which rules of the road do.
  Mr. CONYERS. Mr. Speaker, I am pleased now to yield 2 minutes to the 
distinguished minority whip, the gentleman from Maryland (Mr. Hoyer).
  Mr. HOYER. Mr. Speaker, I thank the gentleman.
  Mr. Speaker, every single Member of this body supports giving our 
Commander in Chief the tools necessary to track terrorists, to 
intercept their communications, and to disrupt their plots. Any 
suggestion otherwise, any suggestion that any Member of this body 
somehow seeks to coddle terrorists who want to attack our Nation and 
kill our people demeans our discourse and is beneath the dignity of 
this institution.

                              {time}  2030

  Make no mistake. Our highest duty is to protect the American people, 
secure our homeland, strengthen our national security, and defend the 
Constitution of the United States. This legislation, unfortunately, is 
deeply flawed and not bipartisan, and would turn the Foreign 
Intelligence Surveillance Act on its head. It fails to explicitly 
preserve FISA's exclusivity. Thus, by implication, it allows the 
President to conduct surveillance of Americans pursuant to any inherent 
authority argument.
  The bill makes sweeping changes to the definition of electronic 
surveillance, allowing the National Security Agency to listen without 
warrant to the content of any communication that is from the United 
States to overseas or vice versa. The bill allows for warrantless 
surveillance after an armed attack or a terrorist attack or 
anticipation of an imminent attack; yet these terms are not defined or 
are loosely defined.
  It is truly a shame, Mr. Speaker, but not surprising that the 
majority refused to allow the Members of this House to consider the 
reasonable bipartisan substitute offered by Congressmen Schiff, Flake, 
and Inglis, two Republicans, two Democrats, and Congresswoman Harman.
  The gentlewoman said that we ran out, running down the street. There 
is a time to stop running down the street and think and give us an 
opportunity to offer alternatives. What a shame that we have not done 
that. What a shame we still run. What a shame we still hark to politics 
rather than the policy.

[[Page 20608]]

  For example, just listen to what William Sessions and William 
Webster--among others--stated recently.
  Recall, Mr. Sessions is the former Director of the FBI during the 
administration of George H.W. Bush, and Mr. Webster is the former 
Director of the FBI during the Carter and Reagan Administrations and 
former Director of the CIA during the first Bush Administration.
  They stated (and I quote): ``Legal uncertainty is exactly what will 
result if Congress heeds the President's call to enact legislation that 
replaces the obligation to use the procedures of the Foreign 
Intelligence Surveillance Act with broad language about relying upon 
the President's constitutional authority.''
  Mr. CONYERS. Mr. Speaker, I yield myself 30 seconds, because it has 
been stated that we might have been able to prevent the September 11 
attack. But a distinguished member of the 9/11 Commission specifically 
criticized General Hayden for suggesting that the NSA warrantless 
wiretapping program could have prevented the September 11 attack by 
stating that it is patently false and an indication that he is willing 
to politicize intelligence and use false information to help the 
President.

       The Administration's claims that the NSA programs could 
     have prevented the September 11 attacks do not appear to 
     comport with the facts. With respect to Nawaf Alhazmi and 
     Khalid Almihdhar, the September 11th Commission found that 
     the Government had already compiled significant information 
     on these individuals prior to the attacks, writing, ``[o]n 
     May 15, [2001], [a CIA official] reexamined many of the old 
     cables from early 2000, including the information that 
     Mihdhar had a U.S. visa, and that Hazmi had come to Los 
     Angeles on January 15, 2000. The CIA official who reviewed 
     the cables took no action regarding them.'' Under FISA, the 
     Administration could have used the information to seek 
     permission to monitor the suspects' phone calls and e-mails 
     without risking any disclosure of the classified information. 
     It is also not at all clear that warrantless surveillance 
     would have been useful in averting the 9/11 attacks, since 
     the Administration was unable to locate where the two 
     suspects were living in the United States and, according to 
     the FBI ``had missed numerous opportunities to track them 
     down in the 20 months before the attacks.'' Senator Bob 
     Kerrey, who was a member of the 9/11 Commission, specifically 
     criticized General Hayden for suggesting that the NSA 
     warrantless wiretapping program could have prevented the 
     September 11 attack stating: ``[t]hat's patently false and an 
     indication that he's willing to politicize intelligence and 
     use false information to help the President.''

  I turn now to the gentleman from Virginia (Mr. Moran) who has studied 
this matter and I yield him 2 minutes.
  Mr. MORAN of Virginia. I thank my good friend and soon-to-be Chair of 
the Judiciary Committee.
  The Republican leadership should be ashamed of itself to be so 
readily willing to undermine every American citizen's constitutional 
protection of privacy in order to give some political help to an 
endangered Republican Congresswoman from New Mexico.
  This bill gives the executive branch unilateral powers to operate 
outside of the law. The FISA court has worked well for the past 30 
years. Through the issuance of warrants, it provides our intelligence 
agencies expedited access to listen in on private communications but 
while safeguarding our civil liberties.
  The FISA court has refused only four requests for surveillance out of 
10,000. Four requests refused out of 10,000. And the Attorney General 
already has the ability to collect information without a court order in 
emergency situations. But this bill will retroactively approve the 
President's wiretapping program, one that our judicial branch has held 
is illegal. It even allows the Justice Department to coerce telephone 
companies to give up their records.
  To date, the administration has never articulated to Congress or the 
relevant committees why such expansive new authority is necessary. 
Congress and the American people deserve an answer as to why we should 
give this President unilateral authority to erode our constitutional 
rights.
  Mr. Speaker, we believe that every communication to and from al Qaeda 
should be monitored. In doing so, however, Congress should not give the 
executive branch a blank check to expose millions of innocent Americans 
to warrantless surveillance. Let's cast a vote for our Constitution and 
for our Bill of Rights and reject this bad bill.
  The SPEAKER pro tempore. The Chair would advise, the gentleman from 
Michigan has 4 minutes remaining; the gentleman from Wisconsin has 9 
minutes remaining.
  Mr. CONYERS. Mr. Speaker, I yield to the gentleman from New York (Mr. 
Hinchey) 2 minutes.
  Mr. HINCHEY. Mr. Speaker, throughout the course of our history, the 
most respected and revered Americans have consistently warned us that 
the greatest threat facing our country was not external but internal. 
We could not be conquered from abroad, but we do have the capacity to 
erode what constitutes this country from within. By doing so, we would 
place ourselves in deep jeopardy; and that is what we see happening 
here today. We see the erosion of the basic principles of this country, 
the rule of law based upon our Constitution.
  This bill that is before the House now is contrary to the fourth 
amendment of our Constitution. It provides for illegal surveillance. 
And when that Constitution was written, it was written based upon the 
experience of people who saw the effects of these kinds of dictatorial 
policies in other places around the world. And that is what we are now 
introducing to our own country.
  We have so-called conservative Republicans who are refusing to 
conserve the basic principles and elements of the Constitution. And the 
most important part of that document, of course, is the first ten 
amendments, the Bill of Rights, and what we are seeing here is the 
erosion of the fourth amendment.
  This bill is contrary to every basic principle of our country. If we 
pass this legislation, we are opening up new opportunities for an 
increasingly despotic administration to continue to erode the basic 
freedoms and liberties of the American people. On that basis alone, 
this bill should be rejected, and it should be rejected 
enthusiastically by the vast majority of the Members of this House. If 
we really understand what we are all about, vote this bill down.
  Mr. CONYERS. Mr. Speaker, I now yield the balance of our time to the 
distinguished gentleman from New Jersey (Mr. Andrews).
  Mr. ANDREWS. Mr. Speaker, if tonight the National Security Adviser 
walked in the Oval Office and said, ``Mr. President, we believe there 
is an imminent attack about to occur in the United States, and we want 
to listen in on a phone call,'' we think there should be no doubt that 
the President has the authority to say, ``Yes, listen in on that phone 
call,'' to protect the United States.
  But at some point the emergency power ends, and the normal rules of 
law must obtain. Certainly that point comes sooner than 90 days after 
the request is made, which can be renewed and renewed and renewed 
without a decision of an independent Federal judge.
  We have a law in place that says that within 72 hours of that 
emergency our President must go before independent Federal judges in a 
private, secret proceeding and justify the decision to listen to the 
calls of Americans or read their e-mails. 99.9 percent of the time 
since 1978 that has worked. There is simply no record, there is simply 
no justification to overturn that decision.
  This is the most expansive, frightening, and unreasonable expansion 
of government power since Japanese Americans were unlawfully interred 
during the Second World War.
  One of our friends from the other side of the aisle said that he was 
offended that liberals had somehow subjected the country to danger. 
Well, America's first liberal, Thomas Jefferson, would be offended by 
this piece of legislation, because it sets the outer balance of 
Presidential power wherever the President chooses to set those outer 
bounds. This violates Marbury v. Madison, it violates a fundamental 
tenant of American law, and, for these reasons, this bill should be 
defeated.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, we have got a problem in this country: We are under 
attack. There are almost 3,000 people that died on 9/11, and we have 
had to change our entire philosophy on how to deal with this threat.
  Before 9/11, we treated terrorist acts as a criminal act. And with a 
criminal

[[Page 20609]]

act, a crime occurs and people are killed, and we send out the police 
to investigate. Hopefully, they get enough evidence to indict someone, 
and then the U.S. Attorney's offices will try them and hopefully obtain 
a conviction, and the judge sentences them, hopefully, for a long, long 
time.
  9/11 proved we can't do that any more, because there are thousands of 
lives that are at risk. In this age of suicide bombings and suicide 
attacks, the people who would be prosecuted usually die in the 
commission of that terrorist act and take thousands of souls, innocent 
souls along with them. That is why we have to bring up to date a law 
that was written in the mid-1970s, and we have done this in a 
constitutional manner.
  What we have heard from the other side of the aisle is, no, this 
isn't good enough and that the perfect is that the enemy of the good. 
Well, Mr. Speaker, if the perfect defeats the good, then bad will 
prevail. And if there is, God forbid, another terrorist attack, the 
blood will be on our hands for not doing the right thing. This bill 
should be passed.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
Michigan (Mr. Hoekstra) and ask unanimous consent that he be allowed to 
yield portions of that time.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. HOEKSTRA. Mr. Speaker, I yield myself 6 minutes.
  Mr. Speaker, there shouldn't be a controversy about the fact that 
there are threats to our national security today and that they continue 
to be more diverse and more complex than ever before.
  The Intelligence Committee has worked throughout this Congress to 
identify and better understand these threats and what steps are 
necessary to provide the best possible capabilities to our intelligence 
community, the men and women of our intelligence community, to keep 
America safe.
  The committee recently issued a detailed report on the threats posed 
by al Qaeda, a hostile regime in Iran. I encourage all members to 
review them. But you don't need to read the reports to understand the 
scope, the urgency, and the viciousness of the threats that we face 
today. The threats are relentless. They are omnipresent.
  In the last 2 months alone, a treasonous American appeared in a video 
prepared by al Qaeda terrorists who have sworn to destroy America and 
said, ``Either repent of your misguided ways and enter into the light 
of truth, or keep your poison to yourself and suffer the consequences 
in this world and the next.''
  Jihadists called for the Pope to be ``hunted down and killed,'' 
merely for reading from a medieval text.
  A 66-year-old Italian nun was ruthlessly shot four times in the back 
and killed while trying to train nurses in Somalia.
  Our British allies discovered a horrific and brutal plot, close to 
fruition, to blow up multiple passenger airliners flying between the 
United States and the United Kingdom. That likely would have been a 
more devastating terrorist attack than 9/11. The British Home Secretary 
has said that they are following at least 20 additional plots.
  Press reports have indicated the possibility that the Stalinist 
regime in North Korea is accelerating its plans to test nuclear 
weapons, and the rogue president of Iran has reiterated his rights to 
nuclear technology.
  If anyone in the House believes that these threats are not real or 
they are not serious, I would welcome any information and discussion to 
the contrary.

                              {time}  2045

  But even if a small portion of these threats have the possibility of 
coming to fruition, it should not be a serious matter of debate that 
our country needs to rapidly and effectively bring every intelligence 
tool to bear to find our enemies, detect and understand their 
intentions, and thwart their hostile and terrorist acts against our 
country and our people.
  The opponents of this bill say it is ``not necessary.'' I suppose the 
bill is ``not necessary'' if you do not believe that the threats we 
face are very real, and very serious. But I believe in the face of such 
intense and relentless threats this House would be derelict in its duty 
not to pass this bill that gives us the necessary intelligence tools to 
defend ourselves.
  This bill is intended to modernize one of our primary weapons against 
terrorists and hostile foreign powers, the Foreign Intelligence 
Surveillance Act. FISA was passed in 1978. There are some who say it 
has been updated since, the law has become dangerously obsolete and 
hopeless as a tool against terrorism. We cannot fight a 21st-century 
intelligence war against sophisticated terrorist and state enemies with 
laws designed around the 1970s, around the former Soviet Union and 
around the bureaucracy associated with the former Soviet Union.
  This bill will update the law to allow more flexible and agile 
intelligence collection against modern communication technologies and 
streamline the process. We must focus our resources on finding and 
detecting terrorists, not on having to fill out repetitive, inch-think 
paperwork to justify what should be an obviously appropriate need to 
listen to two foreign terrorists communicating in a foreign country.
  The outdated law doesn't serve our intelligence interests. It doesn't 
serve our civil liberties interests. It serves only lawyers and 
bureaucracy.
  This bill will focus the resources of the FISA process where they 
belong: on effective intelligence collection and protecting civil 
liberties where Americans have a reasonable expectation of privacy.
  There is no ambiguity. This law continues to protect the average 
American going about their daily business, but does provide for needed 
surveillance against specifically identified terrorist organizations 
and spies. This bill would also provide clear authority for our Nation 
to act in times of armed attack, terrorist attack, or imminent threat.
  It will also substantially increase congressional oversight not only 
of FISA but of all intelligence activities to address important 
concerns about the separation of powers that have been expressed in 
this Congress.
  I appreciate the strong, close support on this matter by Chairman 
Sensenbrenner and the Committee on the Judiciary. I would also like to 
recognize the hard work and the leadership of the distinguished Chair 
of the Intelligence Subcommittee on Technical and Tactical 
Intelligence, Heather Wilson, who took on the assignment to address the 
difficult and complicated issues in this bill. This has not been an 
easy task. She has worked diligently to address a number of complex, 
substantive issues and a range of interests within the House.
  Mr. Speaker, I believe that this bill is not only necessary but vital 
to protect our Nation and the American people. The Nation demands that 
the Congress pass laws to protect our national security. This is what 
this bill does. I urge all Members to support it.
  Mr. Speaker, I reserve the balance of my time.
  Ms. HARMAN. Mr. Speaker, I yield myself 5 minutes.
  Mr. Speaker, 5 years after 9/11, much remains to do. We still must 
learn the whereabouts of Osama bin Laden and Zawahiri so we can capture 
or kill them, achieve intelligence dominance in Iraq so we can protect 
our forces, penetrate global terror cells to prevent them from 
attacking us, plug gaps in our homeland security and prevent nuclear 
material from being acquired by hostile forces bent on using it against 
America and our allies.
  But instead of working on these critical problems, tonight this House 
is voting to fix something that is not broken, the Foreign Intelligence 
Surveillance Act. And we are doing this although we know that the other 
body will not take up this legislation before the recess.
  Mr. Speaker, I worked in the White House when FISA was passed. I 
understand its bipartisan history and the abuses it corrected.
  FISA has been modernized 51 times since then. It is now a modern, 
flexible statute which includes 12 amendments since 9/11 made at the 
administration's

[[Page 20610]]

request. It is a vital tool for the FBI, the CIA and the NSA in their 
investigations of terrorism and espionage.
  All of us support strong tools to intercept the communications of 
terrorists, track their whereabouts and disrupt their plots. All of us. 
But there is no evidence that FISA must be totally rewritten in favor 
of a new regime promoting broad, warrantless surveillance of Americans. 
None. Yet the White House/Wilson bill does just that.
  Mr. Conyers mentioned that a bipartisan group of former government 
officials issued a statement opposing the Wilson approach. They wrote: 
``This legislation would return a complex subject to the murky waters 
from which FISA emerged by making . . . the FISA court, or applying 
FISA in any way, optional rather than mandatory . . . FISA provides . . 
. clarity and should not be abandoned or amended in ways that render it 
irrelevant.''
  Judge William Sessions, who served as FBI director under Presidents 
Reagan and Bush, and Judge William Webster, who also served Presidents 
Reagan and Bush as Director of the FBI and CIA, signed that letter, and 
they are right.
  The White House/Wilson bill muddies the water in two major ways. 
First, the bill rewrites the definition of electronic surveillance so 
it applies only when the government intentionally targets a person 
inside the U.S.
  This means that if an American citizen in Los Angeles talks to her 
sister in Mexico, NSA can listen to their phone calls simply by 
claiming the target is the sister in Mexico. Nearly all international 
calls and e-mails of Americans can be intercepted under this bill 
without a warrant using this new definition of electronic surveillance.
  The next loophole is even larger. The White House/Wilson bill 
authorizes the President to conduct warrantless eavesdropping on the 
communications of American citizens after an armed attack or a 
terrorist attack or an anticipation of an imminent threat. This 
includes domestic-to-domestic phone calls and e-mails. But these terms 
are not defined. Talk about murky waters.
  Imminent threat includes acts that are likely to cause substantial 
economic damage. Is the threat of a trade war an imminent threat?
  To allow 60- to 90-day renewable periods for the President to engage 
in warrantless surveillance is to gut the careful bipartisanship 
protections in FISA and grant the President unchecked power.
  As the Supreme Court has said: ``A state of war is not a blank check 
for the President.'' Not for this President, or any future President.
  Mr. Speaker, we can do better, and we will have time after this 
election to do better. The bipartisan substitute which I strongly 
support is better and would extend from 3 to 7 days the amount of time 
the NSA has to obtain a warrant in an emergency after surveillance 
begins, make clear that foreign-to-foreign communications do not 
require a warrant, even if they are intercepted in the United States, 
increase the number of FISA judges, and put more resources into 
expediting the warrant application process, and reaffirm that FISA is 
the exclusive way to conduct electronic surveillance on Americans.
  It includes key provisions of the LISTEN Act, which Mr. Conyers and I 
produced in May and which has the support of all nine minority members 
of the Intelligence Committee.
  Mr. Speaker, protecting America from terrorism is our constitutional 
duty. We all know that it is an election season and a debate on 
surveillance brings political benefits to some. But that is a terrible 
reason to legislate. I, for one, do not want to suspend our 217-year-
old Constitution tonight for political reasons or no reason at all. 
Vote ``no.''
  Mr. Speaker, I reserve the balance of my time.
  Mr. HOEKSTRA. Mr. Speaker, I would like to at this time yield 4 
minutes to the gentlewoman from New Mexico, Heather Wilson, the 
chairman of the subcommittee, the author of this House legislation.
  Mrs. WILSON of New Mexico. Mr. Speaker, I would like to start out 
this evening by correcting a few misstatements.
  First, the letter that has been referred to a couple of times here by 
Mr. Sessions and Mr. Webster refers to a bill introduced by Senator 
Specter in the Senate which is quite different than the legislation 
that we are considering here in the House tonight.
  Secondly, my colleagues should know that the White House does not 
approve of this legislation. In fact, they had not even seen the 
legislation before I introduced it in the House, and my colleagues on 
both sides of the aisle had that legislation before the administration 
ever did. This is a House bill and a House product.
  I wanted to thank the chairman of the Intelligence Committee and 
Chairman Sensenbrenner of the Judiciary Committee, and my colleagues 
Dan Lungren and Nancy Johnson for their work and help in crafting this 
legislation that we are here to consider tonight. I think it is 
important for all of my colleagues to understand why it is important to 
move forward with the legislation.
  All of us in America remember where we were on the morning of 
September 11. Most of us remember it in fine detail. But none of us 
remember where we were when the Canadian Mounties arrested 17 people 
who had amassed the material for two Oklahoma City-size bombs across 
the river from Detroit. And very few of us remember where we were when 
16 people were arrested in London who intended within days to walk onto 
American airlines aircraft leaving Heathrow and blow them up over the 
Atlantic. We don't remember because it didn't happen. It didn't happen 
because of exceptional intelligence.
  This bill strengthens oversight of all intelligence activities and 
reestablishes that the Congress is a separate coequal branch of 
government with responsibilities to oversee our intelligence agencies.
  It modernizes and simplifies the Foreign Intelligence Surveillance 
Act that is well overdue. It takes into account 21st-century 
communications and 21st-century threats that are using those 
communications against us.
  And it sets clear rules for how we should act in the wake of a 
terrorist attack. There is no broad surveillance authorized by this 
program; but if a known terrorist calls America, we are going to say 
you should listen now. Listen now, not after the FBI develops a 
portfolio, not after legions of lawyers come up with petitions, not 
after you wake the AG or deputy AG in the middle of the night. Not 
after we have gotten all of the paperwork done. Listen now. Protect us 
now because it is reasonable to protect us now.
  Some people have said there is a 72-hour emergency provision in FISA, 
and there is. There is a 72-hour emergency provision, but it requires 
the AG to have all of the information that would go into a FISA 
application, and we don't often have that in this war on terrorism.
  If we have a number on a cell phone from an al Qaeda agent picked up 
in Pakistan, we want to be up on that number if the number is in the 
United States. We don't want to wait for the paperwork to get to the 
Justice Department. We want the terrorists hiding in their caves 
wondering if they can use a cell phone rather than Americans using 
their cell phones to call home one last time.
  That is why I would urge my colleagues to support this legislation in 
front of us this evening.
  Ms. HARMAN. Mr. Speaker, we are all for listening now under the law.
  It is now my pleasure to yield 2 minutes to the gentleman from Texas 
(Mr. Reyes), a member of the Subcommittee on Oversight.
  Mr. REYES. Mr. Speaker, I rise in opposition to the White House/
Wilson bill. I want to detect and intercept terrorists before they 
reach the United States as much as anyone, but I don't want to give the 
President the ability to trample our Constitution in that process.
  I have devoted my entire career to defending our Constitution, first 
in the military, then in the Border Patrol, and now in Congress. I am 
not willing to give the President unnecessary unchecked authorities 
just because it makes good election-year politics.

[[Page 20611]]



                              {time}  2100

  As a member of both the Intelligence Committee and the Armed Services 
Committee, I would like to address the failure of this bill to deal 
with a very specific problem: the President's assertions that the 
authorization for use of military force gave him the authority to 
conduct warrantless surveillance of innocent Americans.
  I offered an amendment in committee that would have inserted 
additional language into the White House-Wilson bill to make clear that 
Congress did not, did not, Mr. Speaker, in passing that authorization, 
empower the President to engage in warrantless surveillance. Like every 
amendment offered in the Intelligence Committee, it was voted down in a 
party line vote. Anything that doesn't square with the President's wish 
list was unacceptable to the sponsor of this bill. That is 
disappointing, and that is not bipartisanship.
  I take very seriously our obligation to provide the President with 
the tools that he needs to provide for national security, but I also 
reject the notion that the authorization for use of military force 
allows the President to ignore the fourth amendment and conduct 
warrantless surveillance on American citizens.
  To this day, even the Intelligence Committee cannot be sure whether 
there are other secret programs that the President believes Congress 
has implicitly authorized. But we can at least make sure that this 
position, our position, is clear, that he must respect this one.
  I still don't think that the authorization for use of military force 
authorized those things, and I continue to be amazed that the White 
House, with a straight face, thinks that it did. I am not afraid to 
stand up for our Constitution. I am not afraid to take a stand and 
provide the tools to the President either. But this is not the right 
vehicle. It should be a bipartisan effort.
  The White House-Wilson bill is a terrible affront to our 
constitutional system, and I urge a ``no'' vote.
  Mr. HOEKSTRA. Mr. Speaker, I yield 3 minutes to my colleague, Mr. 
Dent.
  Mr. DENT. Mr. Speaker, I rise tonight to speak in strong support of 
H.R. 5825, the Electronic Surveillance Modernization Act, for four 
reasons:
  First, the act applies only to foreign agents operating in this 
country. It cannot be used to spy on ordinary Americans. It cannot be 
used in run-of-the-mill criminal prosecutions. It allows only short-
term, let me repeat, short-term warrantless surveillance.
  Second, the act makes it easier to conduct surveillance on those 
foreign agents. Up to now, their communications within this country 
could not be monitored without FISA approval if it was likely that U.S. 
citizens were involved in those communications.
  Third, and most importantly, the Act makes it easier for us to 
respond to attack or to the threat of attack. Under current law, 
warrantless surveillance of foreign agents is permitted only after the 
U.S. has declared war. Waiting to monitor the activities of foreign 
terrorists until a formal declaration of war has been declared may be 
too late. Under H.R. 5825, we can begin such surveillance after an 
armed or terrorist attack has occurred or, even more significantly, 
when there is an imminent threat that is likely to cause death or 
widespread harm.
  Finally, the Act gives intelligence authorities the flexibility 
needed to respond to emergency situations. Under current law, 
intelligence authorities may conduct surveillance in an emergency for 
up to 3 days before that agency must go to a FISA court for a warrant. 
Under H.R. 5825, that period is extended to 7 days, giving authorities 
more time to respond to that emergency and to gain valuable information 
that might save people's lives.
  For all these reasons, I urge strong support for the Electronic 
Surveillance Modernization Act.
  And, finally, I would like to say maybe, maybe, had this technology 
been employed before 9/11, maybe those two terrorists out in San Diego 
who were on the phones to Yemen into a switchboard, a switchboard 
apparently that bin Laden himself had called into one time, maybe had 
we been doing this type of surveillance, maybe we could have prevented 
at least one of those attacks that occurred at the Pentagon on 
September 11.
  For all these reasons, I strongly support the legislation.
  Ms. HARMAN. Mr. Speaker, we all wish we had connected the dots prior 
to 9/11.
  Mr. Speaker, I now yield 2 minutes to Representative Eshoo of 
California, the ranking member on our Subcommittee on Technical and 
Tactical Intelligence.
  Ms. ESHOO. Mr. Speaker, I thank our distinguished ranking member for 
yielding.
  I wish we were debating final passage on a much better bill. Sadly, 
this bill gives the administration what it wants: a blank check to 
conduct domestic surveillance without a warrant.
  Mrs. Wilson said earlier that this is not a White House bill. Well, 
if it is not a White House bill, it is a White House dream, because it 
is a blank check to the President.
  Instead of addressing specific problems in the law with tailored 
solutions, this bill eviscerates the Foreign Intelligence Surveillance 
Act. Now, that Act is only almost 30 years old. It is not an antique. 
It hasn't collected dust. It has been revised. It has been amended. It 
has been brought up to date. But that is not good enough. This bill 
eviscerates it.
  One of the arguments advanced during the debate was that FISA needs 
to be technology neutral. I agree. We agreed. We went out to NSA. They 
told us that. We agreed. We offered a tailored solution. Rejected. The 
whole bill has to be scrapped in order to make changes.
  That is not a prudent course. This bill heads us down a dangerous 
path. The radical changes this bill makes to FISA definitions and 
standards represent a wholesale rewrite of the law. They nullify FISA 
by exempting large categories of U.S. person communications from the 
warrant requirement, and it rubber-stamps all forms of data mining.
  The American people want us to protect them, but they don't want us 
to throw the Constitution overboard. May I remind everyone, with the 
obligation that we have to the American people when we come here, the 
oath we take says that we will uphold the Constitution of the United 
States. This bill does not live up to our Constitution. It gives away 
the fourth amendment. Members of the House should reject it.
  Mr. HOEKSTRA. Mr. Speaker, I would like to yield 2 minutes to one of 
the newer members of the committee, Mr. Issa from California.
  Mr. ISSA. Mr. Speaker, as the chairman said, I am one of the newer 
members to the Select Intelligence Committee. But I am not any longer 
one of the newer Members to Congress, because I was here on September 
11. I saw as we evacuated the Capitol. I saw as the Pentagon burned. I 
saw as America rallied, asking us to make sure this didn't happen 
again.
  Today, we are considering some commonsense, limited reforms that are 
necessary. They are necessary because, on both sides of the aisle, we 
want to make sure that we codify in law what will be done, that we 
minimize executive order but maximize the ability of the executive 
branch to meet its obligations to the people.
  H.R. 5825, if it weren't the eve of election, would clearly be just 
another commonsense reform done on a bipartisan basis. But we are in 
the midst of an election.
  I have been on the Judiciary Committee since I came as a freshman 6 
years ago. I am very concerned about civil rights, about protecting 
Americans' civil rights. And if I could just take a minute to get 
beyond the partisanism for a moment, I am also an Arab American. I am 
exactly the group that is likely to have to think about is my call to 
Yemen or to Lebanon or to Jordan or any of the other expanded places 
that I have family and friends, is that going to be potentially 
monitored? I have thought about that. I have soul searched it for 
myself and for many millions of people like myself in the United States 
who are Americans born and raised but, in fact, have friends and family 
abroad.

[[Page 20612]]

  I am comfortable with this bill. I am comfortable with the parts that 
are unclassified, and I am comfortable with what I have learned on a 
classified basis. That doesn't come easy, but I have made the effort to 
do so. I am supporting this bill because it is the right thing to do to 
make all Americans safe, and it is the right thing to do to make sure 
that we never again have to apologize to the American people for 
September 11.
  Ms. HARMAN. Mr. Speaker, it is now my pleasure to yield 2 minutes to 
Representative Holt of New Jersey, ranking member on our Subcommittee 
on Oversight.
  Mr. HOLT. Mr. Speaker, I thank the gentlewoman from California for 
yielding.
  Mr. Speaker, this is not a debate about whether we should be 
wiretapping al Qaeda. This is a debate about whether intelligence 
agencies should be guided so that their efforts are most effective in 
protecting Americans from terrorism.
  The President has been sending intelligence agencies on fishing 
expeditions. Now, of course, when al Qaeda calls, we should be 
listening. And under FISA we can and we do. But the President wants to 
turn a vacuum cleaner on the communications of innocent Americans, with 
no checks and balances, trampling the rights of many in the search for 
a few. We need to bring some discipline to our electronic surveillance 
with checks and balances, checks so that we don't make dreadful 
mistakes.
  Our history is replete with mistakes, when we were sure, absolutely 
certain, that we knew who the enemies were: Martin Luther King, Jr.; 
Paul Robeson; Brandon Mayfield, an innocent lawyer in Portland; and on 
and on. The White House-Wilson bill, in the name of modernization, is 
extending the President's vacuum cleaner.
  The President under FISA has the power he needs within the 
legislative framework that will focus his power on terrorists, not on 
innocent Americans. Our government is strongest when all three branches 
of government work together, and we are weak when the President tries 
to act alone and in secret. This President has been acting alone and in 
secret, and that is why the fight against terrorists has been going so 
badly.
  This President, any President, needs the supervision of Congress and 
the courts.
  Mr. HOEKSTRA. Mr. Speaker, I yield 3 minutes to a gentleman from the 
committee, Mr. Tiahrt.
  Mr. TIAHRT. Mr. Speaker, I thank the gentleman from Michigan for 
yielding.
  Mr. Speaker, Americans live under the U.S. Constitution. As Members 
of Congress, we swear an oath to uphold the United States Constitution. 
It means something to be an American because we believe in our country, 
we believe in our people, and we believe in our constitution.
  In the New Testament, Paul, the Apostle, once was taken captive and 
held for the crime of spreading the Gospel of Jesus Christ. He 
responded by saying, ``I am a citizen of Rome.'' And, as a citizen of 
Rome, he was granted certain privileges because it meant something to 
be a Roman citizen.
  Well, today, we are in the struggle brought on to us by the 
terrorists of Islam. It is a war that we did not choose. It was a war 
that was declared against us as Americans, against our people, against 
our Constitution.
  Today, we are now deciding how do we treat those who are choosing to 
carry out a war against us, non-U.S. citizens who are choosing to take 
us to task for what we believe and who we are. In this conflict, we 
have to decide how we are going to try to find these terrorists.
  If in a conflict a certain laptop is captured in the fleeing from a 
conflict, when a member of the al Qaeda leaves and on that laptop we 
happen to find some information, including phone numbers, should we 
check those phone numbers to see if they are calling from Pakistan or 
Afghanistan or Iraq or elsewhere on the globe into the United States? 
Should we check to see if there is a terrorist plot being formulated 
against the citizens of the United States? Should we give them the same 
rights as we have as American citizens?
  Well, we have gone over and above the way we treat our prisoners. How 
do the members of al Qaeda treat us as prisoners? How do they treat our 
soldiers? They have no prisoners because, when they capture one of our 
troops, they are executed. They are either beheaded or they get shot in 
the back of the head.
  In our attempts to keep this country safe, we need to remember who it 
is that we are dealing with. And when they do call in, what type of 
process should we go through to keep this country safe? It is my belief 
that this legislation has the checks and balances that protects the 
Constitution. It has the same safeguards that we all hold dear for the 
citizens of this country, and yet it gives us the tools necessary to 
keep this country safe, the same tools we use to capture people who 
push drugs on our kids, the same tools we use to keep child 
pornographers from taking advantage of our children.

                              {time}  2115

  The same tools we need to use to keep this country safe by bringing 
terrorists to justice, because I guarantee you, if they have the 
opportunity and the means, they will take American lives.
  So we must use this tool, as laid out in this legislation, to make 
sure that we can keep this country safe, to make sure that we can, yes, 
uphold the Constitution, but use all tools necessary to make sure that 
we bring these criminals, these terrorists, these people who want to 
harm us to justice.
  Ms. HARMAN. Mr. Speaker, how much time remains?
  The SPEAKER pro tempore (Mr. Bass). The gentlewoman from California 
has 3\3/4\ minutes, and the gentleman from Michigan has 4\1/2\ minutes.
  Ms. HARMAN. Mr. Speaker, I yield 2 minutes to the gentleman from 
Massachusetts (Mr. Tierney).
  Mr. TIERNEY. Mr. Speaker, I thank the gentlewoman from California, 
and I associate myself with the remarks that she made at the beginning 
of this proceeding here this evening.
  Mr. Speaker, the President's warrantless wiretapping program should 
have been conducted under the Foreign Intelligence Surveillance Act 
provisions. The threat of terrorism demands careful response.
  The government has to have strong powers, including the authority to 
carry out various forms of electronic surveillance. FISA, as was 
amended over 20 times, updated, provides those powers. People want to 
be protected, but they do not want their legislators in an election 
year to just start handing away their constitutional rights and 
privileges.
  I agree with the assessment of one of the witnesses before our 
committee: such a complex and proven statute as FISA should be amended 
only with great caution and only on the basis of a public showing of 
need.
  This administration's concerns about FISA were narrow and they were 
few and could have been resolved with clarifications. But we proposed 
bipartisan legislation that would take care of it. This majority chose 
not to take that legislation up.
  Instead, they have proposed this broad and sweeping and over-reaching 
bill that, regardless of what my colleagues may say on the other side, 
is a dream of the White House, and Mr. Cheney and Mr. Bush.
  To protect the constitutional rights and to ensure the effective 
application of government powers, government surveillance should be 
focused. That focus can best be achieved through a system of checks and 
balances that are implemented through executive but also legislative 
and judicial review.
  The bill before us effectively eliminates review. The bill before us 
simply gives the executive carte blanche to intercept communications of 
United States citizens without making adequate attention to preserving 
the liberties and civil rights that are embedded in our Constitution.
  It is unnecessarily broad and it is harmful for the interests of 
Americans. In making sure that the government has all of the powers 
that it needs, we have to have a law that ensures citizens their rights 
will be adequately protected even as their safety is secure.

[[Page 20613]]

  Therefore, this bill fails because it does not allow for essential 
protections. Except in emergencies, there must be prior judicial 
approval. Congress should be fully informed of all surveillance 
activity and carefully oversee it.
  Any repeal of FISA's exclusivity provision is wrong, Mr. Speaker. It 
would turn back the clock 30 years. There is a reason FISA was passed 
into law, and those reasons exist today.
  It is clear, after having listened at classified and open hearings, 
that the President's program of warrantless wire tapping should have 
proceeded to intercept communications only under the Foreign 
Intelligence Surveillance Act's, FISA's, provisions. The Threat of 
Terrorism demands a careful response.
  The Government must have strong powers, including the authority to 
carry out various forms of electronic surveillance. Still, to protect 
Constitutional rights and to ensure effective application of those 
powers, government surveillance must be focused. That focus can best be 
achieved through a system of checks and balances implemented through 
executive, legislative and judicial review.
  I agree with the assessment of one of our witnesses with a Policy and 
Technology background: Such a complex and proven statute as FISA should 
be amended only with great caution and only on the basis of a public 
showing of need.
  After all this time since the 12/05 disclosure of the program the 
Administration has made public only limited, quite narrow arguments 
that FISA is in need of further amendment:
  (1) The Attorney General's explanation of problems involving the 
timely invocation of FISA emergency exception. In other words, in some 
cases the process was making it difficult to get a warrant application 
processed within the 72 hours allowed by the statute after interception 
commenced . . .
  Those problems, evidence shows, are due in part to the paperwork 
burdens created by the Executive Branch and perpetuated by this 
Administration.
  That problem it is largely self-inflicted and is not due to any delay 
by the Foreign Intelligence Surveillance Court.
  The remedy--direct the President to report to Congress on the need 
for more resources, Asst. AG's, etc., and make any legislative and 
procedural changes that are necessary (i.e. if more than 72 hours post-
emergency intercept needed for warrant).
  The Harman-Conyers bill addresses these matters, though it is not 
even actually necessary to pass an amendment or a law to meet these 
goals.
  (2) A concern was put forth that a court order is necessary for the 
interception of foreign-to-foreign communications of non-U.S. persons 
that happen to pass through the U.S., where they can be more readily 
accessed by U.S. government agencies.
  In other words, some in the agency were interpreting the law to 
require a warrant even if U.S. persons weren't involved but the 
communication passed through the U.S. Many experts believe that to be 
the wrong interpretation. Still, the remedy--presumably a narrow 
clarification could be crafted. Clearly, any updating of FISA can be 
done in a way that is Constitutional and responsive to the Executive 
branch's needs.
  Measures before this body purporting to simply give the Executive 
carte blanch to intercept communications of U.S. citizens without 
making adequate attention to preserving the liberties and civil rights 
imbedded in our Constitution are unnecessarily broad and harmful to the 
interests of Americans.
  In ensuring that the government has all the powers it needs, we must 
have a law that assures citizens their rights will be adequately 
protected even as their safety is secured.
  Therefore, any amendment or bill must provide that: Except in 
emergencies--there must be prior judicial approval;
  Congress must be fully informed of all surveillance activity and 
carefully oversee it; Interceptions of contents of communications of 
U.S. persons must be focused on particular individuals suspected of 
being terrorists or particular physical or virtual addresses used by 
terrorists; The threshold should require that there is probable cause 
to believe the target is a terrorist and that the intercept will yield 
intelligence; and
  FISA must be the exclusive means to carry out intelligence 
surveillance within the U.S. Any repeal of FISA's exclusivity provision 
is wrong. It would turn the clock back 30 years and do away with 
legislative oversight and judicial review. There were valid reasons 
that FISA was passed. Those reasons still exist.
  Mr. HOEKSTRA. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
Connecticut (Mrs. Johnson).
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I appreciate the gentleman 
yielding to me. It is quite stunning that my colleagues on the other 
side of the aisle describe this as a broad, sweeping authority, and 
that under the NSA program, somehow the President can go on fishing 
expeditions.
  The NSA program applies only to international calls and only when 
those calls involve the telephone number of a known al Qaeda operative. 
So if it is someone from Hezbollah or some other group, you cannot do 
it. It has to be al Qaeda.
  Well, I will tell you, if a call is going from a known terrorist al 
Qaeda operative in Iraq or Afghanistan or Pakistan to America, I want 
to know. I want to know what they are saying. If there is anything 
London taught us, it is that we need to know. And we need to know to be 
able to stop actions from happening that threaten and endanger our 
people.
  The second thing is, the persistent, repeated claim on the other side 
of the aisle that somehow a FISA court application is a snap of the 
fingers. Brian Cunningham, former CIA official and Clinton-appointed 
Federal prosecutor: NSA cannot lawfully under FISA listen to a single 
syllable until it can prove to the Attorney General, usually in 
writing, that it can jump through each and every one of FISA's 
procedural and substantive hoops.
  And those procedural and substantive hoops mean that the operative at 
the National Security Agency has to decide there is an issue, has to 
put it in writing. The lawyers of NSA have to agree. They have to 
provide paperwork that goes to the lawyers of the Department of 
Justice.
  I mean, there are lots of steps to this process. And to imagine that 
this can be done rapidly, it often takes weeks from what I have heard 
in briefings. It can take longer than that. To believe that this can be 
done in 72 hours and protect our people is to close your eyes to the 
reality of the terrible danger that terrorism possess to people in 
America and throughout the world.
  Ms. HARMAN. Mr. Speaker, I yield myself 30 seconds to respond to the 
prior speaker, and then I will yield the remainder of our time to the 
minority leader.
  Mr. Speaker, I am glad that Mrs. Johnson brought up this question of 
procedural and substantive hoops. This is a claim that she has made 
before. And I just want to point out to my friend that those procedural 
and substantive hoops, relating to emergency FISAs, are imposed by the 
Justice Department and the NSA, not by the law.
  No one here wants there to be procedural and substantive hoops 
involved in getting emergency warrants. All of us want to listen if 
there is an emergency and get the warrant later.
  Mr. Speaker, I yield the balance of our time to the gentlewoman from 
California (Ms. Pelosi), my predecessor as ranking member on the 
Intelligence Committee and the leader of the minority.
  Ms. PELOSI. Mr. Speaker, I thank the gentlewoman for yielding. I 
thank her for her leadership and her clarity on this very important 
issue. And clarity indeed is needed here.
  Mr. Speaker, each of us wants the President to have all of the 
intelligence necessary to protect our country and to protect the 
American people. We spend billions of dollars every year to make sure 
that the most reliable intelligence possible is available in a timely 
fashion to the President and our military commanders.
  We know that intelligence collection can involve highly intrusive 
methods. That is the reality of intelligence gathering. But when those 
methods are employed against people within the United States, it is 
imperative that they comply with the Constitution and they be subjected 
to regular and thorough congressional and judicial oversight.
  For 28 years, the statutory basis for electronic surveillance for 
intelligence purposes has been FISA, the Foreign Intelligence 
Surveillance Act. The reason FISA exists was because in 1975 the Church 
Committee found numerous instances of warrantless electronic 
surveillance and physical searches of United States citizens who were 
not spies, but who advocated unpopular political views.

[[Page 20614]]

  FISA was a compromise designed to prevent overreaches unrelated to 
our national security while clarifying when warrantless surveillance 
could be used for domestic security purposes. The FISA process has 
worked well for nearly three decades, and that success is due in part 
to the fact that we have been able to modify it as the needs and 
technologies change. In fact, FISA has been modified 51 times since 
1978.
  FISA can be changed. It can be updated. It can be broadened or 
amended, but it should not be circumvented. And that is what this bill 
does tonight. It tries to circumvent FISA law and our Constitution.
  Last December, President Bush confirmed press reports that he had 
permitted warrantless surveillance to occur outside the FISA process, 
and that he had both inherent and statutory authority to do so. FISA is 
and must remain the exclusive means for authorizing warrantless 
surveillance of people in the United States for intelligence purposes.
  This exclusivity provision is what allows for judicial and 
congressional oversight and protects all of us from abuse. 
Unfortunately, the bill now under consideration eliminates that 
protection. Instead, it accepts the President's argument that there are 
circumstances in which he needs to be able to order surveillance 
without using the FISA process and then provides him with the authority 
to do so.
  If this bill passes, rather than being the exclusive means for 
authorizing surveillance, FISA would be just one option. The result 
would be less oversight and fewer checks and balances and more abuses 
of executive power.
  I heard our colleagues on the other side say things as ridiculous as 
this, and they know better. In fact they know what they are saying 
could not possibly be true. They are saying that if we pick up the 
phone and we hear a terrorist on the line, Democrats want us to hang 
up.
  You have to really be very kind not to attribute some very sinister 
motivation to anyone who would say such a thing. Of course, that is not 
the case. And that is what is so important about the FISA, because it 
does allow our collectors to listen in on those conversations while 
they get a FISA, while they can be brought under the law through FISA.
  That is the beauty of the motion to recommit that Mr. Schiff, Mr. 
Flake, Ms. Harman, and others will be putting forth later this evening. 
It simply says that the vote to go into Afghanistan did not give the 
President the authority to avoid the law, and undermines the 
Constitution.
  It says that FISA can be updated. It provides funds, more funding for 
the implementation of FISA. It extends the number of days under which 
collection may be done without a FISA warrant. It, in fact, modernizes 
FISA in a way that is appropriate, but maintains the exclusivity which 
is central, central to the President operating under the law.
  The combination of the military commission bill passed yesterday and 
this bill would be an unprecedented expansion of executive authority 
into some of the most fundamental liberties enshrined in our 
Constitution: the right to privacy and the right to due process of law.
  These are not merely academic, legal, or technical matters. These are 
rights. These rights are at the heart of what makes us unique as a 
Nation, and I believe they will be diminished by the passage of these 
bills.
  The President claims that inherent in his office is all of the 
authority needed to conduct warrantless electronic surveillance. Rather 
than enshrine in law powers the President claims he already holds, we 
should await the conclusion of judicial review of the President's 
domestic surveillance program.
  At that point, we can determine if additional adjustments to FISA are 
necessary. We do not need to pass this diminishment of privacy in our 
country tonight.
  Of course, that would require something that the administration has 
thus far been unwilling to allow, congressional hearings on the 
domestic surveillance program.
  Congress needs answers to questions that remain unresolved to the 
unsatisfactory and sterile briefings provided thus far by the 
administration. Until that happens, we should be reaffirming the 
exclusivity of FISA and our commitment to providing whatever additional 
resources and procedural enhancements might be necessary to facilitate 
its operation.
  That is exactly what the bipartisan Schiff, Flake, Harman, Inglis 
amendment would do. The Republican leadership should have ensured that 
the House had a chance to consider the amendment today. That would have 
been the fair thing to do. Instead, we have had to force the issue 
through a motion to recommit. That motion is the only, only initiative 
that stands between us and a vote on a bad bill.
  I urge the adoption of that motion in the spirit of protecting the 
American people, of expanding the time allowed to collect without a 
FISA warrant, and to do so with exclusivity and under the law to honor 
our oath of office that we take to uphold the Constitution.

                              {time}  2130

  Anyone who says that we want to hang up on Osama bin Laden demeans 
the debate, cannot possibly be serious and owes the American people 
better.
  Mr. HOEKSTRA. Mr. Speaker, I yield myself the balance of the time.
  Mr. Speaker, we are a Nation at war. All we need to do is take a look 
at what the leaders of radical Islam are saying. Bin Laden has said 
that if by the grace of God he would be able to have access to nuclear 
weapons, he would use them.
  All you need to do is take a look at what radical Islam is doing. 
Just five short weeks ago, they once again had a plan to attack America 
in a horrific way, multiple planes crashing into the Atlantic Ocean at 
the same time.
  This is a global war. The attack that had its home in the U.K. is 
directed out of Pakistan. It is targeted at America. There are 
operatives throughout the Middle East, north Africa, Europe, the 
Netherlands, Canada, Australia. It is a global and dangerous enemy. It 
is a decentralized, entrepreneurial organization that is very, very 
dangerous.
  We are on the offense. We are taking the fight to the radical 
Islamists wherever they may be.
  This bill is about making sure that the men and women in our 
intelligence community have the tools to fight this kind of an enemy. 
It is time to update FISA. It is time to give the men and women in the 
intelligence community the tools for them to fulfill the job that we 
have asked them to do, which is to protect America, to keep us safe.
  Vote for this bill. Vote for a modernization.
  Mr. MACK. Mr. Speaker, I rise today to express my thoughts and 
concerns regarding the Electronic Surveillance Modernization Act (H.R. 
5825). As a strong conservative, I believe in national security, 
independent courts that follow the law, strong legislative oversight, 
and individual responsibility.
  While this legislation is an important and effective tool for 
combating and winning the war on terrorism, I believe it is the duty of 
this body to err on the side of freedom and the constitutional 
protections the American people cherish and deserve.
  The history of a government with unchecked power is a history of 
tyrannical governments. Unchecked power caused civilized people to 
write the Magna Carta, the Declaration of Independence, the United 
States Constitution, and the Bill of Rights. At its crux, the 
Constitution ensures the separation of powers and confirms the Founding 
Fathers' belief that power corrupts, and absolute power corrupts 
absolutely.
  Five years ago, this Nation suffered the deadliest terrorist attack 
in our Nation's history. This attack was an act of war and Congress 
came together to provide law enforcement and intelligence officials 
with sweeping powers to increase intelligence-gathering abilities and 
information sharing in the name of fighting terrorism. This was a wise 
and prudent choice. However, due to the legitimate concerns raised 
about the powers we put into the hands of government and the need to be 
mindful of the liberty we are sworn to uphold, Congress remained 
vigilant in maintaining appropriate checks and balances.
  Under this Electronic Surveillance Modernization Act, the Terrorist 
Surveillance Program (TSP) will continue to exist alongside the 
wiretapping regime established by this Act.

[[Page 20615]]

You will have two programs--one on the books and the other not. While I 
strongly support the War on Terror and our president, this legislation 
would allow any American president to turn to the TSP if this Act 
unduly constrains their efforts. This is not checks and balances, but 
rather, an end-run around the basic principles of the rule of law.
  This legislation allows any president virtually unlimited power to 
intercept the communications of every American on his word alone. For 
example, the bill eliminates FISA's warrant requirement for electronic 
surveillance whenever the president certifies that the United States 
has been the subject of a terrorist attack and identifies the terrorist 
organizations or their affiliates believed to be responsible. But, as 
we all know, for the indefinite future, the United States will be 
targeted by terrorists and the enemies of freedom. Further, the bill 
allows for the surveillance and physical searches of any American homes 
or businesses for 90 days if there is an ``armed attack'', a term 
undefined in the bill, against the United States territory.
  Some have characterized the TSP as an irresponsible reaction. While I 
support intercepting terrorists' communications, Congress must ensure 
that checks and balances are included and proper oversight is 
maintained. But this legislation will prevent Congress from exercising 
that critical oversight.
  History tells us that in times of war or conflict, government is all 
too willing to ask its citizens to sacrifice liberty in the name of 
security. America witnessed it during World War II with the immoral 
internment of Japanese Americans. But our children and grandchildren 
deserve a future that cherishes both their security and their liberty, 
not one at the expense of the other. It is our duty to protect that 
balance and I can only hope that when this legislation emerges from 
conference and is enacted into law that we will have fulfilled that 
responsibility.
  President Reagan once said, ``Freedom is a fragile thing and is never 
more than one generation away from extinction. It is not ours by 
inheritance; it must be fought for and defended constantly by each 
generation. . . .''
  Mr. Speaker, the War on Terror must be fought and it will be won. 
But, as we prosecute this war, we must understand that it is our 
generation's time and responsibility to defend freedom. While our brave 
young men and women in the military are fighting for liberty around the 
globe, this Congress must honor their sacrifice and the cornerstone of 
the United States by defending freedom here at home.
  Mr. BLUMENAUER. Mr. Speaker, the Electronic Surveillance 
Modernization Act, H.R. 5825, seeks to expand the administration's 
power by giving the President greater flexibility over a program that 
he has already abused. If our experience with this administration 
proves anything, it is that reducing congressional oversight would be a 
mistake.
  Less than a year ago the American public learned how the president 
had blatantly disregarded the Foreign Intelligence Surveillance Act 
(FISA) by authorizing a warrantless eavesdropping program on American 
citizens. After this program was uncovered, we discovered that the 
administration had authorized the National Security Agency to build a 
massive phone records database. Now the President asks that we pass 
legislation to legitimatize illegal activities that have already 
occurred and the current Republican leadership is all too willing to 
comply.
  This legislation does not solve any problems or make our country more 
secure, it simply grants the administration the authority to implement 
more programs that violate the civil rights and liberties of American 
citizens.
  We must hold this administration accountable for its actions and not 
retroactively approve an illegal program. Surveillance activities must 
be done consistent with our Constitution and our laws, and should 
protect both the American people and our freedoms.
  Mr. ETHERIDGE. Mr. Speaker, as a member of the Committee on Homeland 
Security, I rise in opposition to H.R. 5825, the Electronic 
Surveillance Modernization Act. I strongly support aggressive action to 
protect America from the threat of terrorism. We must do whatever it 
takes to defeat our terrorist enemies and defend our core principles. 
But this bill is unnecessary and goes too far and empowers 
unaccountable bureaucrats to violate the rights of law-abiding 
Americans.
  Since the terrorist attacks on our nation on September 11, 2001, I 
have consistently supported the modernization of the Foreign 
Intelligence Surveillance Act (FISA) through my votes in favor of the 
USA PATRIOT Act and its reauthorization (P.L. 107-56, P.L. 109-177), 
the Intelligence Authorization Act for Fiscal Year 2002 (P.L. 107-108), 
the 21st Century Department of Justice Appropriations Authorization Act 
(P.L. 107-273), and the Department of Homeland Security Act (P.S. 107-
296).
  FISA is a modern, flexible statute that is a vital tool for the FBI, 
CIA and the NSA in their investigations of terrorism and espionage. 
This law provides intelligence and law enforcement officials the 
authority to monitor the communications of those who would do us harm 
while protecting the privacy and civil liberties of U.S. persons as 
guaranteed by the Constitution.
  H.R. 5825 is an ill-conceived, election-year ploy that would expand 
executive wiretap authority to unprecedented levels and expose the 
daily, innocent communications of American citizens to review by 
faceless bureaucrats.
  Mr. Speaker, we must provide our law enforcement officials with the 
tools and resources they need to plug gaps in our homeland security and 
to penetrate global terror cells, but the House Republican leadership 
attempts to weaken the U.S. Constitution by lowering the standard of 
the Fourth Amendment to score political points. I support the 
bipartisan Harman-Flake alternative that represents a balanced approach 
to defeat the terrorists while safeguarding our rights.
  Mr. SMITH of Texas. Mr. Speaker, I support this legislation.
  Those who oppose the Terrorist Surveillance Program say that it 
violates civil rights, that it sends the wrong message to U.S. citizens 
and foreign nations, and that it should be stopped.
  To the contrary, the Terrorist Surveillance Program protects 
Americans' lives and sends terrorists the message that we will use 
every legal means possible to defend ourselves. It should be continued, 
not eliminated.
  Before 9/11, information sharing between law enforcement and 
intelligence officials was almost non-existent.
  The hands of our criminal investigators and intelligence 
investigators were tied and they were unable to alert each other to 
terrorist threats.
  After 9/11, that was changed.
  Now some want to halt government programs that help intelligence 
officials figure out who wants to harm us.
  We cannot afford to return to a pre-9/11 status. We cannot dismiss 
the possibility of a terrorist attack. We cannot throw away the tools 
we need to protect us.
  And the Terrorist Surveillance Program is one of those tools.
  The ``Electronic Surveillance Modernization Act'' allows the 
President to continue the Terrorist Surveillance Program.
  Let's keep our guard up and our defenses strong, and support this 
legislation.
  Mr. CANNON. Mr. Speaker, the debate before us centers on what the 
legitimate roles of Congress and the Executive Branch are in terms of 
foreign policy and intelligence gathering matters.
  It is an issue that strikes at the heart of the Constitution.
  I The Constitution leaves little doubt that the President is expected 
to have the primary role of conducting foreign policy, but Congress has 
a role and the debate today indulges us in defining that role.
  The language that I offered at the Judiciary Committee and is 
included in the Substitute Amendment does not delve into the 
Constitutional relationship between the Congress and the Executive.
  The language deals with an issue of fairness.
  It deals with the issue of whether individuals or companies that 
comply with government orders are liable to third parties for following 
these orders.
  The purpose of this language is to eliminate the 60 plus lawsuits 
that have been filed because companies complied with government orders.
  Absent an effective immunity provision that allows a company to avoid 
these legal quagmires, an individual or company will be reluctant to 
cooperate with any authorized government surveillance program and that 
will severely undercut this country's terror-fighting capabilities and 
the safety of our constituents.
  Should these claims proceed to judgment, the financial liabilities 
could add up to hundreds of billions of dollars--enough to destroy any 
industry.
  Although I do not believe the suits will succeed the defense costs 
alone will be considerable.
  But what is worse is the chilling effect on compliance for future 
requests.
  We can argue what the law is but we all agree that we should 
encourage compliance with our laws.
  The language in the Substitute amendment will separate questionable 
litigation from a national security imperative and focus our attention 
where it should be, which is what is Constitutionally allowed.

[[Page 20616]]

  If the overall program is illegal or unconstitutional that is for us 
and the Courts to decide.
  Judges, who are sought out in a forum shopping frenzy, should not 
issue decision's that could undermine our protection from a future 
terrorist attack and reveal classified sources or methods.
  If you oppose the program administered by this Administration; if you 
don't believe in the Constitutional theories regarding the Executive's 
authority--that is an issue for discussion; that is our right as 
Members of Congress to debate.
  But it is irrelevant to Section 10 which will merely provide 
liability protections for compliance with a certification from the 
Attorney General.
  I urge support of this legislation.
  Mr. UDALL of New Mexico. Mr. Speaker, I rise today in opposition to 
H.R. 5825, the Electronic Surveillance Modernization Act.
  The bill before us today allows this Administration to continue its 
program of unwarranted surveillance of Americans, in direct violation 
of the rights guaranteed to us by the Constitution and by statute. Mr. 
Speaker, proponents of this legislation claim that there is no 
violation or question about the program's legality. If that is, in 
fact, the case, then why are we considering legislation with the sole 
purpose of legalizing the President's, and the NSA's, actions?
  Last December, we learned that President Bush authorized the National 
Security Agency to spy domestically, without obtaining any warrants. 
Since that time, we have learned very little about the program, largely 
due to the Administration's unwillingness to properly inform Congress 
about the programs components, scope, or its budget. The little we do 
know, however, is that through this program, hundreds, and possibly 
thousands, of Americans have had their telephone conversations and 
emails monitored without any judicial supervision. The Majority has 
failed in its oversight responsibilities. Nevertheless, we are 
preparing to pass legislation that legitimizes this little understood, 
but still extremely troubling program.
  H.R. 5825 allows the President to authorize warrantless surveillance 
of communications of ordinary Americans without first obtaining 
approval from the FISA court. They say they need this because our laws 
are out of date. This is false and untrue.
  Current law (FISA) allows the President to act in emergencies and 
when there is a declaration of war by Congress. The proponents have not 
come forward with evidence that the current law is not working or 
failing to protect us.
  Congress must use the checks and balances placed in our Constitution 
to curb the Administration's actions. Congress needs to assert its 
oversight responsibility and fully evaluate this NSA program. And the 
Administration needs to stop its attempts to extend its power and 
authority, at every available opportunity, by circumventing our 
nation's laws. Despite what this Administration would have us believe, 
securing our nation from all enemies both foreign and domestic can be 
achieved without violations of our civil liberties and right to 
privacy. I urge my colleagues to vote no on this misguided and ill-
advised legislation.
  Mr. STARK. Mr. Speaker, I rise against the Electronic Surveillance 
Modernization Act (H.R. 5825) because I swore to uphold the 
Constitution and I will not vote to provide exceptions to it. The 
Fourth Amendment to the Constitution reads: ``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.'' In other words, you have to get a 
warrant any time you spy on an American. That is the entire text of the 
Amendment. It doesn't say ``unless President Bush thinks the person is 
a terrorist,'' ``except in cases where it's inconvenient to file the 
paperwork,'' or even ``with limitations as defined by Congress.''
  Realizing the urgent nature of some national security investigations, 
federal law permits wiretaps without warrants in emergencies as long as 
court approval is obtained within three days. If the surveillance 
involves only communications of agents of foreign powers, the 
government can conduct warrantless surveillance for up to a year. These 
warrants are not difficult to obtain. Since 1978, when the law was 
enacted, the Foreign Intelligence Surveillance Act Court has approved 
more than 18,000 national security warrants. Only five have been turned 
down. But current law isn't good enough for the President. He wants to 
do what he wants, when he wants, without telling anyone.
  This President violated the Constitution. Rather than hold him 
accountable, we are going to approve of his despotic behavior. Under 
this legislation, the President can conduct warrantless surveillance of 
Americans any time he declares there is an ``imminent threat'' likely 
to cause death or widespread harm. Good luck finding a time when this 
President, or any President for that matter, doesn't claim there's an 
imminent threat.
  Mr. Speaker, in this Congress alone, you have attempted to close the 
halls of justice to detainees, gun victims, religious minorities, fast 
food consumers, asylum-seekers, injured patients, and now, anyone spied 
on by their own government. We've gone from a nation of laws to a 
nation of exceptions. Unless my colleagues want a nation of, by, and 
for the Protestant, thin, suspicionless white male, I urge them to join 
me in voting no.
  Mr. PAUL. Mr. Speaker, Congress is once again rushing to abandon its 
constitutional duty to protect the constitution balance between the 
executive, legislative, and judicial branches of government by 
expanding the executive's authority to conduct warrantless wiretaps 
without approval from either a regular federal court or the Foreign 
Intelligence Surveillance Act (FISA) court. Congress's refusal to 
provide any effective checks on the warrantless wiretapping program is 
a blatant violation of the Fourth Amendment and is not necessary to 
protect the safety of the American people. In fact, this broad grant of 
power to conduct unchecked surveillance may undermine the government's 
ability to identify threats to American security.
  Instead of creating standards for warrantless wiretapping, H.R. 5825 
leaves it to the President to determine when ``imminent'' threat 
requiring warrantless wiretapping exists. The legislation does not even 
define what constitutes an imminent threat; it requires the executive 
branch to determine when a threat is ``imminent.'' By passing this 
bill, Congress is thus abdicating its constitutional role while making 
it impossible for the judiciary to perform its constitutional function.
  According to former Congressman Bob Barr, thanks to Congress' failure 
to establish clear standards for wiretapping, under H.R. 5825 
``. . . simply making an international call or sending an e-mail to 
another country, even to a relative (or a constituent) who is an 
American citizen, will be fair game for the government to listen in on 
or read. Moreover, this legislation allows the government to conduct 
secret, warrantless searches of American citizens' homes in a broad 
range of circumstances that are essentially undefined in the 
legislation.''
  Mr. Speaker, I do not deny that there may be certain circumstances 
justifying warrantless wiretapping. However, my colleagues should 
consider that current law allows for warrantless wiretapping in 
emergency situations as long as a ``retroactive'' warrant is sought 
within 72 hours of commencing the surveillance or the warrantless 
surveillance commences within 15 days after Congress declares war. If 
there are legitimate reasons why the current authorization for 
warrantless wiretapping is inadequate, then perhaps Congress should 
extend the time allowed to wiretap before applying to the FISA court 
for a ``retroactive'' warrant. This step could enhance security without 
posing the dangers to liberty and republican government contained in 
H.R. 5825.
  The requirement that, except in extraordinary circumstances, a 
warrant be obtained from the FISA court does not obstruct legitimate 
surveillance efforts. It is my understanding that FISA judges act very 
quickly to consider applications for search warrants, even if the 
applications are faxed to their houses at three in the morning. 
Applications for FISA warrants are rarely rejected. In 2005, the 
administration applied for 2,074 warrants from the FISA court. Of those 
2 where voluntarily withdrawn and 63 where approved with modifications; 
the rest were approved. The FISA court only rejected four applications 
for warrants in the past four years; and one of those rejected warrants 
was subsequently partially approved.
  Warrantless wiretapping may hinder the ability to identify true 
threats to safety. This is because experience has shown that, when 
Congress makes it easier for the federal government to monitor the 
activities of Americans, there is a tendency to collect so much 
information that it becomes impossible to weed out the true threats. My 
colleagues should consider how the over-filing of ``suspicious 
transaction reports'' regarding financial transactions hampers 
effective anti-terrorism efforts. According to investigative journalist 
James Bovard, writing in the Baltimore Sun on June 28, ``[a] U.N. 
report on terrorist financing released in May 2002 noted that a 
`suspicious transaction report' had been filed with the U.S. government 
over a $69,985 wire transfer that Mohamed Atta, leader of the 
hijackers, received from the United Arab Emirates. The report noted 
that `this particular transaction was

[[Page 20617]]

not noticed quickly enough because the report was just one of a very 
large number and was not distinguishable from those related to other 
financial crimes.''' Congress should be skeptical, to say the least, 
regarding the assertion that allowing federal bureaucrats to accumulate 
even more data without having to demonstrate a link between the data 
sought and national security will make the American people safer.
  In conclusion Mr. Speaker, because H.R. 5825 sacrifices liberty for 
the illusion of security, I must oppose this bill. I urge my colleagues 
to do the same.
  Ms. WOOLSEY. Mr. Speaker, I rise tonight in great sadness. It's the 
run-up to the fall elections, and what has the Republican Majority 
pushed through the Congress?
  Torture, a subversion of the Geneva Conventions, and domestic spying. 
The Administration claims to be spreading democracy throughout the 
world. How about some democracy and freedom here at home?
  Shame on this Congress for trampling civil rights at home and abroad. 
We are supposed to stand up for freedom and liberty and the rights of 
the most vulnerable. Instead we are spying on Americans?
  Mr. Speaker, this is not the country our Founding Fathers dreamt of. 
And it certainly is not the country I want to hand down to my 
grandchildren.
  This bill is not making us safer--it is making us less free.
  I urge my colleagues to stand up for freedom. I urge my colleagues to 
vote no!
  Mrs. MALONEY. Mr. Speaker, I rise today in opposition to H.R. 5825, 
the ``Electronic Surveillance Modernization Act.''
  Yet again, the Republican Majority has brought legislation to the 
Floor that disregards the rights of American citizens. H.R. 5825 would 
give the executive branch broad discretion to eavesdrop on Americans 
without judicial review or sufficient oversight from Congress.
  Since the terrorist attacks of 9/11, we have learned more and more 
about the secret programs run by this Administration that violated 
long-standing U.S. laws and policies. I know that we all agree that 
obtaining intelligence to prevent terrorist attacks is a high priority. 
However, innocent Americans should not have to worry that their phones 
have been tapped or their emails are being read.
  It is a shame that the bill before us today leaves out the sensible 
provisions of the bipartisan Schiff-Flake-Harman-Inglis substitute 
which would require congressional oversight of surveillance programs, 
extends from 72 hours to seven days the amount of time allowed to 
initiate surveillance in an urgent situation before going to the FISA 
court for a warrant, and increase the speed of the FISA process.
  We should be standing up for the Constitution today and not passing 
legislation that tramples all over it.
  I urge my colleagues to vote no.
  Ms. SCHAKOWSKY. Mr. Speaker, I rise in strong opposition to H.R. 
5825, the Electronic Surveillance Modernization Act.
  I believe that President Bush's secret warrantless wiretapping 
program was a violation of the Foreign Intelligence Surveillance Act 
(FISA) and violated the civil rights that make this country so strong 
and respected. Once this program was unveiled, the Administration's 
response was not to change the program to comply with American law but 
to change American law to comply with this program. As a result, we 
have the bill before us--legislation that would make truly far-reaching 
changes to FISA and will have alarming consequences for democracy and 
civil liberties.
  H.R. 5825 expands the definition of ``electronic surveillance'' to 
include Americans' international emails and phone calls. It authorizes 
the warrantless electronic surveillance and physical searches of 
Americans' emails and phone calls for 60-days after an ``armed attack'' 
or 60 days before and after an ``imminent attack'' against the United 
States. Those 60-day periods can be indefinitely renewed. Moreover, 
``imminent attack'' is defined as an ``attack likely to cause death, 
serious injury, or substantial economic damage.'' What is ``substantial 
economic damage?'' This definition is so sweeping that hacking into a 
computer could fit. This bill also strips all courts of jurisdiction 
over surveillance cases, preventing anyone from seeking redress for 
illegal or unconstitutional electronic surveillance.
  All of us want to be protected from terrorists, but we can protect 
our Nation without expanding the FISA law so broadly that innocent 
people can be spied on by their own government without reasonable 
justification, trampling on our civil liberties. The FISA law already 
has measures that take into account the need for emergency 
surveillance, and the need for urgency cannot be used as a rationale 
for going around America's law. FISA allows wiretapping without a court 
order in an emergency; the court must simply be notified within 72 
hours. The government is aware of this emergency power and has used it 
repeatedly.
  Mr. Speaker, the United States is a Nation built upon its adherence 
to the laws. And no one--not even a U.S. president--is above the law. 
Our system of checks and balances must be maintained if American 
democracy is to be preserved. I urge all of my colleagues to vote 
``no'' to H.R. 5825.
  Mr. LANGEVIN. Mr. Speaker, I rise in strong opposition to H.R. 5825, 
the Electronic Surveillance Modernization Act. Since the President's 
illegal domestic wiretapping program became public, I have called for 
greater oversight and Congressional involvement to ensure that we can 
provide our intelligence agencies with the tools needed to fight 
terrorism while protecting essential civil liberties of Americans. The 
bill before us today does not meet those standards.
  As a member of the House Armed Services and Homeland Security 
Committees, I am fully aware of the dangers posed by those who wish to 
harm Americans, and I have strongly supported efforts to make our 
nation safer. However, the Bush Administration has not explained to my 
satisfaction why powers available under existing law cannot meet the 
needs of the war on terrorism. For example, the Foreign Intelligence 
Surveillance Act (FISA) already permits the warrantless surveillance of 
communications under certain limited circumstances. Nevertheless, the 
Bush Administration did not use those emergency powers and instead 
chose to expand the authority of the National Security Agency (NSA). 
The President's decision to expand domestic surveillance, while 
notifying only a handful of legislators, does not constitute 
Congressional consent and is a danger to our established Constitutional 
system of checks and balances.
  I would have been receptive to modifications to FISA that preserved 
the vital oversight through the creation of the FISA court system. I am 
a cosponsor of H.R. 5381, the Lawful Intelligence and Surveillance of 
Terrorists in an Emergency by NSA (LISTEN) Act, introduced by the 
ranking Democrat on the Intelligence Committee, the gentlewoman from 
California, Mrs. Harman. This legislation would mandate that all 
monitoring of calls, email records and phone records be carried out in 
accordance with FISA and further asserts that the 2002 authorization 
for the NSA domestic surveillance program outside of FISA was not 
within the Bush Administration's authority.
  Instead, this legislation gives the President broad authority to 
continue his domestic surveillance program without approval from the 
FISA court. It uses judicial and Congressional notification as a 
substitute for legitimate oversight, and it establishes such broad 
justifications for surveillance that the Administration will have 
almost unlimited ability to continue its past practices with little to 
no changes. Disturbingly, it also removes an important protection of 
current law that requires the government to certify that its 
warrantless surveillance of foreign agents would not intercept the 
communications of U.S. citizens.
  Once again, the President has sought to expand his own authority at 
the expense of Americans' civil liberties, and Congress has willingly 
abdicated its oversight authority. I urge my colleagues to vote against 
this measure so that we can find a better way to crack down on 
terrorist who would do us harm while safeguarding the rights of 
Americans.
  Mr. UDALL of Colorado. Mr. Speaker, I support changing current law on 
electronic surveillance to remove obstacles to vigorously fighting 
terrorism, and I believe we can do so in a way that protects the 
constitutional rights of our citizens. This bill attempts to strike the 
right balance, but it has serious flaws that could and should have been 
corrected--and because of those flaws, I cannot support it as it 
stands.
  I believe the American people should know that on this very important 
subject, for the most part, we are being asked to legislate in the 
dark. It is only because of leaks to the news media that we became 
aware that after the terrorist attacks of 2001 the administration 
decided not to follow the procedures of the Foreign Intelligence 
Surveillance Act, FISA, with regard to a new, wide-ranging surveillance 
program.
  Since it became public, that decision has been controversial and has 
been challenged in the courts, but the administration has consistently 
maintained that this surveillance program is lawful--although it has 
been less consistent in its reasons for reaching that conclusion.
  Like many of our colleagues, I have found some of their arguments 
strained and far from fully convincing.
  Nonetheless, I do think it makes sense to further revise FISA to 
reflect both the latest technology and the realities of the current 
threats to our country. And events since the

[[Page 20618]]

revelation of the administration's decision not to comply with FISA 
have made it clear that there is a definite need for better oversight 
by Congress, which can occur only if we require more reporting by the 
executive branch.
  So, I react favorably to some points made by this bill's author and 
supporters in support of the way it addresses both of these concerns. 
They point to provisions described as designed to update FISA's 
definition of electronic surveillance to make it technology neutral as 
well as those they say are intended to enhance congressional oversight 
not only of electronic surveillance, but also of U.S. intelligence and 
intelligence-related activities generally.
  While these positive aspects of the bill are encouraging, they are 
unfortunately overwhelmed by the bill's more serious defects.
  Overall, this legislation goes very far toward making warrantless 
surveillance of communications here in the United States the rule 
rather than the exception and toward allowing the executive branch to 
conduct electronic surveillance of telephone calls and e-mail in the 
United States without adequate, meaningful oversight.
  The bill makes sweeping alterations to the current definition of 
``electronic surveillance'' and how to define an ``agent of a foreign 
power.'' The bill redefines the term ``surveillance device'' in a way 
that would allow the government to conduct unregulated data retention 
and data-mining operations on all the information collected through the 
warrantless surveillance that this bill authorizes.
  My concerns about these provisions are shared by others, including 
former Representative (and former House Republican leader) Dick Armey, 
as expressed in a September 26th letter in which he says:

       The explosion of computers, cameras, location-sensors, 
     wireless communication, biometrics, and other technologies is 
     making it much easier to track, store, and analyze 
     information about individuals' activities. Unfortunately, the 
     legislation may promote additional government intrusions into 
     individual lives by exempting such data mining from requiring 
     court orders. . . . It is not evident that such legislation 
     will necessarily prevent the next terrorist attack. But . . . 
     failure is unlikely to lead to a halt in federal data mining. 
     Instead, it will probably just spur the government into an 
     ever-more furious effort to collect ever-greater amounts of 
     personal information on ever-more people in a vain effort to 
     make the concept work. We would then have the worst of both 
     worlds: poor security and a vast increase in the information 
     about individuals collected by the government that would 
     destroy Americans' privacy and threaten our freedom.
       I also am concerned that while the bill would explicitly 
     allow essentially unlimited surveillance in the event of an 
     ``armed attack'' a ``terrorist attack,'' or an ``imminent 
     threat of attack,'' those terms are not adequately defined. I 
     think this means that there is an unacceptably large chance 
     that these sweeping exceptions would give the Executive 
     Branch unlimited authority to conduct surveillance whenever 
     and however it prefers.

  These concerns are heightened by the fact that the bill does not 
include an explicit reaffirmation of the principle that FISA, including 
the revisions that would be made by the bill, is the exclusive means 
for conducting electronic surveillance in the United States. Such a 
provision would help make sure that every president--now and in the 
future--complies with the law.
  This is not a theoretical matter, because the Bush administration has 
never indicated that it will comply with FISA--even as it would be 
revised by this bill, which was proposed by a member of his party and 
has the support of that party's leadership here in the House of 
Representatives. Indeed, the Bush administration has indicated it will 
appeal the recent decision of a federal judge that its ongoing 
surveillance program--which the administration candidly says does not 
comply with the current version of FISA--is illegal.
  That was one of the reasons I voted for the motion to recommit, which 
would have added language to reiterate that FISA is the exclusive means 
by which domestic electronic surveillance for foreign intelligence 
purposes may be conducted, unless Congress amends the law or passes 
additional laws regarding electronic surveillance. It also would have 
made clear that the Authorization for the Use of Military Force, AUMF, 
passed after the 9/11 attacks and that was the basis for our military 
actions in Afghanistan--a measure I supported--does not constitute an 
exception to that rule.
  If the motion to recommit had been adopted, the result would have 
been to approve an alternative version of the legislation so it would 
update FISA to provide intelligence agencies more flexibility in 
emergency situations and less bureaucratic red tape when applying for 
warrants, while still requiring court orders for domestic surveillance 
of Americans.
  That better alternative would have extended from 72 hours to 7 days 
the amount of time allowed to initiate surveillance in an urgent 
situation before going to the FISA court for a warrant. This authority 
can be used to thwart imminent attacks.
  The alternative also would have made clear that foreign-to-foreign 
communications are outside of FISA and don't require a court order, and 
would have provided that a FISA order for electronic surveillance shall 
continue to be in effect for the authorized period even if the person 
leaves the United States. It also would have removed redundant 
requirements in the application process and made other changes to 
streamline the FISA process, including adding judges to the FISA court 
while authorizing that court, the Department of Justice, the FBI, and 
the NSA to hire more staff for the preparation and consideration of 
FISA applications and orders. And it would have made clear that in 
addition to a ``declaration of war by the Congress,'' an 
``authorization for the use of military force, AUMF,'' can also trigger 
the FISA ``wartime exception'' for purposes of allowing 15 days of 
warrantless surveillance.
  I think that alternative had the best features of this bill without 
its defects. Unfortunately, it was not adopted and those changes were 
not made.
  As a result, I do not think this bill as it stands should be 
approved. But while I cannot support it tonight, I recognize that it is 
not being sent to the president for signing into law. Instead, if it 
passed tonight it will go to the Senate, where it will be subject to 
further debate and revision.
  My hope is that if it does pass tonight, and the legislative process 
continues, the result of that process will be a revised version that 
will deserve enactment.
  Mr. HOEKSTRA. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 1052, the bill is considered read and 
the previous question is ordered.
  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.


                Motion to Recommit Offered by Mr. Schiff

  Mr. SCHIFF. Mr. Speaker, I have a motion to recommit at the desk.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. SCHIFF. Yes, in its current form.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Schiff of California moves to recommit the bill H.R. 
     5825 to the Committee on the Judiciary with instructions to 
     report the same back to the House forthwith with the 
     following amendment:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``NSA Oversight Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) On September 11, 2001, acts of treacherous violence 
     were committed against the United States and its citizens.
       (2) Such acts render it both necessary and appropriate that 
     the United States exercise its right to self-defense by 
     protecting United States citizens both at home and abroad.
       (3) The Federal Government has a duty to pursue al Qaeda 
     and other enemies of the United States with all available 
     tools, including the use of electronic surveillance, to 
     thwart future attacks on the United States and to destroy the 
     enemy.
       (4) The President of the United States possesses the 
     inherent authority to engage in electronic surveillance of 
     the enemy outside of the United States consistent with his 
     authority as Commander-in-Chief under Article II of the 
     Constitution.
       (5) Congress possesses the authority to regulate electronic 
     surveillance within the United States.
       (6) The Fourth Amendment to the Constitution guarantees to 
     the American people the right ``to be secure in their 
     persons, houses, papers, and effects, against unreasonable 
     searches and seizures'' and provides that courts shall issue 
     ``warrants'' to authorize searches and seizures, based upon 
     probable cause.
       (7) The Supreme Court has consistently held for nearly 40 
     years that the monitoring and recording of private 
     conversations constitutes a ``search and seizure'' within the 
     meaning of the Fourth Amendment.
       (8) The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) was enacted to provide the legal 
     authority for the Federal Government to engage in searches of 
     Americans in connection with intelligence gathering and 
     counterintelligence.
       (9) The Foreign Intelligence Surveillance Act of 1978 was 
     enacted with the express purpose of being the exclusive means 
     by which

[[Page 20619]]

     the Federal Government conducts electronic surveillance for 
     the purpose of gathering foreign intelligence information.
       (10) Warrantless electronic surveillance of Americans 
     inside the United States conducted without congressional 
     authorization may have a serious impact on the civil 
     liberties of citizens of the United States.
       (11) United States citizens, such as journalists, 
     academics, and researchers studying global terrorism, who 
     have made international phone calls subsequent to the 
     terrorist attacks of September 11, 2001, and are law-abiding 
     citizens, may have the reasonable fear of being the subject 
     of such surveillance.
       (12) Since the nature and criteria of the National Security 
     Agency (NSA) program is highly classified and unknown to the 
     public, many other Americans who make frequent international 
     calls, such as Americans engaged in international business, 
     Americans with family overseas, and others, have a legitimate 
     concern they may be the inadvertent targets of eavesdropping.
       (13) The President has sought and signed legislation 
     including the Uniting and Strengthening America by Providing 
     Appropriate Tools Required to Intercept and Obstruct 
     Terrorism (USA PATRIOT ACT) Act of 2001 (Public Law 107-56), 
     and the Intelligence Reform and Terrorism Protection Act of 
     2004 (Public Law 108-458), that have expanded authorities 
     under the Foreign Intelligence Surveillance Act of 1978.
       (14) It may be necessary and desirable to amend the Foreign 
     Intelligence Surveillance Act of 1978 to address new 
     challenges in the Global War on Terrorism. The President 
     should submit a request for legislation to Congress to amend 
     the Foreign Intelligence Surveillance Act of 1978 if the 
     President desires that the electronic surveillance authority 
     provided by such Act be further modified.
       (15) The Authorization for Use of Military Force (Public 
     Law 107-40), passed by Congress on September 14, 2001, 
     authorized military action against those responsible for the 
     attacks on September 11, 2001, but did not contain legal 
     authorization nor approve of domestic electronic surveillance 
     for the purpose of gathering foreign intelligence information 
     except as provided by the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1801 et seq.).

     SEC. 3. REITERATION THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                   OF 1978 AS THE EXCLUSIVE MEANS BY WHICH 
                   DOMESTIC ELECTRONIC SURVEILLANCE MAY BE 
                   CONDUCTED TO GATHER FOREIGN INTELLIGENCE 
                   INFORMATION.

       (a) Exclusive Means.--Notwithstanding any other provision 
     of law, the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) shall be the exclusive means by which 
     electronic surveillance for the purpose of gathering foreign 
     intelligence information may be conducted.
       (b) Future Congressional Action.--Subsection (a) shall 
     apply until specific statutory authorization for electronic 
     surveillance for the purpose of gathering foreign 
     intelligence information, other than as an amendment the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.), is enacted. Such specific statutory authorization 
     shall be the only exception to subsection (a).

     SEC. 4. DISCLOSURE REQUIREMENTS.

       (a) Report.--As soon as practicable after the date of the 
     enactment of this Act, but not later than 14 days after such 
     date, the President shall submit to the Permanent Select 
     Committee on Intelligence of the House of Representatives and 
     the Select Committee on Intelligence of the Senate a report--
       (1) on the Terrorist Surveillance Program of the National 
     Security Agency;
       (2) on any program which involves the electronic 
     surveillance of United States persons in the United States 
     for foreign intelligence purposes, and which is conducted by 
     any department, agency, or other element of the Federal 
     Government, or by any entity at the direction of a 
     department, agency, or other element of the Federal 
     Government, without fully complying with the procedures set 
     forth in the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.); and
       (3) including a description of each United States person 
     who has been the subject of such electronic surveillance not 
     authorized to be conducted under the Foreign Intelligence 
     Surveillance Act of 1978 and the basis for the selection of 
     each person for such electronic surveillance.
       (b) Form.--The report submitted under subsection (a) may be 
     submitted in classified form.
       (c) Access.--The Chair of the Permanent Select Committee on 
     Intelligence of the House of Representatives and the Chair of 
     the Select Committee on Intelligence of the Senate shall 
     provide each member of the Committees on the Judiciary of the 
     House of Representatives and the Senate, respectively, access 
     to the report submitted under subsection (a). Such access 
     shall be provided in accordance with security procedures 
     required for the review of classified information.

     SEC. 5. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.

       (a) Authority for Additional Judges.--The first sentence of 
     section 103(a) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1803(a)) is amended by striking ``judicial 
     circuits'' and inserting ``judicial circuits, and any 
     additional district court judges that the Chief Justice 
     considers necessary for the prompt and timely consideration 
     of applications under section 104,'';
       (b) Consideration of Emergency Applications.--Section 
     105(f) of such Act (50 U.S.C. 1805(f)) is amended by adding 
     at the end the following new sentence: ``The judge receiving 
     an application under this subsection shall review such 
     application within 24 hours of the application being 
     submitted.''

     SEC. 6. STREAMLINING FISA APPLICATION PROCESS.

       (b) In General.--Section 104 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1804) is amended--
       (1) in subsection (a)--
       (A) in paragraph (6), by striking ``detailed description'' 
     and inserting ``summary description'';
       (B) in paragraph (7)--
       (i) in subparagraph (C), by striking ``techniques;'' and 
     inserting ``techniques; and'';
       (ii) by striking subparagraph (D); and
       (iii) by redesignating subparagraph (E) as subparagraph 
     (D); and
       (C) in paragraph (8), by striking ``a statement of the 
     means'' and inserting ``a summary statement of the means''; 
     and
       (2) in subsection (e)(1)(A), by striking ``or the Director 
     of National Intelligence'' and inserting ``the Director of 
     National Intelligence, or the Director of the Central 
     Intelligence Agency''.
       (a) Conforming Amendment.--Section 105(a)(5) of such Act 
     (50 U.S.C. 1805(a)(5)) is amended by striking 
     ``104(a)(7)(E)'' and inserting ``104(a)(7)(D)''.

     SEC. 7. INTERNATIONAL MOVEMENT OF TARGETS.

       Section 105(d) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1805(d)), as redesignated by section 7(4), 
     is amended by adding at the end the following new paragraph:
       ``(4) An order issued under this section shall remain in 
     force during the authorized period of surveillance 
     notwithstanding the absence of the target from the United 
     States, unless the Government files a motion to extinguish 
     the order and the court grants the motion.''.

     SEC. 8. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR 
                   EMERGENCY ELECTRONIC SURVEILLANCE.

       Section 105(f) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1805(f)) is further amended by striking 
     ``72 hours'' each place it appears and inserting ``168 
     hours''.

     SEC. 9. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN 
                   WARTIME.

       Section 111 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1811) is amended by striking ``the Congress'' 
     and inserting ``the Congress or an authorization for the use 
     of military force described in section 2(c)(2) of the War 
     Powers Resolution (50 U.S.C. 1541(c)(2)) if such 
     authorization contains a specific authorization for 
     electronic surveillance under this section.''.

     SEC. 10. ACQUISITION OF COMMUNICATIONS BETWEEN PARTIES NOT IN 
                   THE UNITED STATES.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is further amended--
       (1) by adding at the end of title I the following new 
     section:


   ``ACQUISITION OF COMMUNICATIONS BETWEEN PARTIES NOT IN THE UNITED 
                                 STATES

       ``Sec. 112.  (a) In General.--Notwithstanding any other 
     provision of this Act, a court order is not required for the 
     acquisition of the contents of any communication between 
     persons that are not located within the United States for the 
     purpose of collecting foreign intelligence information, 
     without respect to whether the communication passes through 
     the United States or the surveillance device is located 
     within the United States.
       ``(b) Treatment of Intercepted Communications Involving a 
     Domestic Party.--If an acquisition described in subsection 
     (a) inadvertently collects a communication in which at least 
     one party to the communication is within the United States--
       ``(1) in the case of a communication acquired inside the 
     United States, the contents of such communication shall be 
     handled in accordance with minimization procedures adopted by 
     the Attorney General that require that no contents of any 
     communication to which a United States person is a party 
     shall be disclosed, disseminated, or used for any purpose or 
     retained for longer than 168 hours unless a court order under 
     section 105 is obtained or unless the Attorney General 
     determines that the information indicates a threat of death 
     or serious bodily harm to any person; and
       ``(2) in the case of a communication acquired outside the 
     United States, the contents of such communication shall be 
     handled in accordance with minimization procedures adopted by 
     the Attorney General.''; and
       (2) in the table of contents in the first section, by 
     inserting after the item relating to section 111 the 
     following:
``112. Acquisition of communications between parties not in the United 
              States.''.

[[Page 20620]]



     SEC. 11. ADDITIONAL PERSONNEL FOR PREPARATION AND 
                   CONSIDERATION OF APPLICATIONS FOR ORDERS 
                   APPROVING ELECTRONIC SURVEILLANCE.

       (a) Office of Intelligence Policy and Review.--
       (1) In general.--The Attorney General may hire and assign 
     personnel to the Office of Intelligence Policy and Review as 
     may be necessary to carry out the prompt and timely 
     preparation, modification, and review of applications under 
     section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804) for orders approving electronic 
     surveillance for foreign intelligence purposes under section 
     105 of such Act (50 U.S.C. 1805).
       (2) Assignment.--The Attorney General shall assign 
     personnel hired and assigned pursuant to paragraph (1) to and 
     among appropriate offices of the National Security Agency in 
     order that such personnel may directly assist personnel of 
     the National Security Agency in preparing applications under 
     section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804).
       (b) National Security Branch of the FBI.--
       (1) In general.--The Director of the Federal Bureau of 
     Investigation may hire and assign personnel to the National 
     Security Branch as may be necessary to carry out the prompt 
     and timely preparation of applications under section 104 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1804) for orders approving electronic surveillance for 
     foreign intelligence purposes under section 105 of such Act 
     (50 U.S.C. 1805).
       (2) Assignment.--The Director of the Federal Bureau of 
     Investigation shall assign personnel hired and assigned 
     pursuant to paragraph (1) to and among the field offices of 
     the Federal Bureau of Investigation in order that such 
     personnel may directly assist personnel of the Federal Bureau 
     of Investigation in such field offices in preparing 
     applications under section 104 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1804).
       (c) National Security Agency.--The Director of the National 
     Security Agency may hire and assign personnel as may be 
     necessary to carry out the prompt and timely preparation of 
     applications under section 104 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1804) for orders 
     approving electronic surveillance for foreign intelligence 
     purposes under section 105 of such Act (50 U.S.C. 1805).
       (d) Foreign Intelligence Surveillance Court.--The presiding 
     judge designated under section 103(b) of such Act may hire 
     and assign personnel as may be necessary to carry out the 
     prompt and timely consideration of applications under section 
     104 of such Act (50 U.S.C. 1804) for orders approving 
     electronic surveillance for foreign intelligence purposes 
     under section 105 of that Act (50 U.S.C. 1805).

     SEC. 12. DEFINITIONS.

       In this Act:
       (1) The term ``electronic surveillance'' has the meaning 
     given the term in section 101(f) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(f)).
       (2) The term ``foreign intelligence information'' has the 
     meaning given the term in section 101(e) of such Act (50 
     U.S.C. 1801(e)).

  Mr. SCHIFF (during the reading). Mr. Speaker, I ask unanimous consent 
that the motion to recommit be considered as read and printed in the 
Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  The SPEAKER pro tempore. The gentleman is recognized for 5 minutes in 
support of his motion to recommit.
  Mr. SCHIFF. Mr. Speaker, it is a regrettable fact that at the 
beginning of the 21st century there are a great many people in the 
world whose primary motive in life is to seek to harm or kill 
Americans. Our country faces a real threat, and it must be addressed.
  As we fight this threat, Americans need to know two things. First, 
that we will use every tool we have necessary to stop the people that 
would hurt this country, that we will do everything possible to find 
them, to capture them, to kill them, if necessary. We will surveil 
them, we will listen to their calls and their e-mails, and we will do 
everything in our power to protect this country.
  Second, Americans need to know that if you are a law-abiding citizen 
and you are not a terrorist or supporting terrorists that we will 
respect your privacy. We will not listen to your calls when we do not 
have a business to, and we will not read your e-mails when we have no 
business to.
  Under the Schiff-Flake motion to recommit, we modernize FISA. We give 
the government the time, the flexibility it needs. We fix the problem 
of foreigners talking to foreigners in calls that go through the United 
States. In short, we do everything that the NSA and the Justice 
Department has asked us to do.
  The base bill, by contrast, excludes whole categories of 
surveillance, including the surveillance of Americans on American soil 
from court review. The base bill can be summarized as follows: Trust 
us. We are from the government. We may listen to you, but trust us. We 
know what we are doing.
  But our Constitution was drafted on a very different premise, a 
premise that said we operate from a system of checks and balances, that 
no one branch of government should be trusted implicitly, without 
review and oversight by another.
  Today, we have a choice between two alternatives, both of which 
modernize FISA, one which gives a blank check sought by the 
administration, the other that protects Americans on American soil.
  One of the leaders in this debate that I have been privileged to work 
with is my colleague from the great State of Arizona, and I yield to 
the gentleman from Arizona (Mr. Flake).
  Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, I am not comfortable in this position, standing up to 
argue in favor of a Democrat motion to recommit. Just a year ago, I 
stood at that very podium and argued on behalf of the majority in favor 
of reauthorization of the PATRIOT Act and against the Democrat motion 
to recommit that was favored by many of my colleagues.
  But during that process, we had more than a dozen hearings, a long 
markup, a spirited debate on the floor under a rule that allowed for a 
series of amendments, including four of my own. We did not have that 
process this time.
  This was a closed rule that did not allow for a vote, a clean vote, 
on a bipartisan substitute except as a Democrat motion to recommit. I 
wish that this were not the case because, as I said, I try not to make 
a habit of voting for Democrat motions to recommit.
  But for those of us who believe we should exercise our congressional 
prerogative to regulate the President's authority to conduct 
surveillance, this is our only option. For those of us who believe that 
FISA should be the exclusive vehicle for conducting surveillance 
related to foreign intelligence, this is our only option. And for those 
of us who believe that we should give the administration all the tools 
they need to conduct surveillance but retain the ability to regulate 
and provide oversight for such surveillance, this is our only option.
  If the underlying bill is enacted into law, we will have two 
surveillance programs, one under FISA and on the books, and one outside 
of FISA and off the books. If we do this, we will not give due 
deference to our congressional responsibility.
  Make no mistake, if we vote for the underlying bill and against the 
motion to recommit, we will walk out of these doors a lot less relevant 
than when we walked in this morning.
  With that, Mr. Speaker, I urge a vote for the Democrat motion to 
recommit and against the underlying bill.
  Mr. SCHIFF. Mr. Speaker, I yield to the gentleman from South Carolina 
(Mr. Inglis).
  Mr. INGLIS of South Carolina. Mr. Speaker, I thank the gentleman for 
yielding.
  You know, we want to listen to the terrorists. We want to know who 
they are talking to. If they are talking foreign to foreign, we clearly 
have the right to listen in. If they are talking foreign to domestic, 
we want to listen, but we want a judge to review that.
  The idea is to have in this separation of powers between the judicial 
and the executive branch the oversight that the Framers had in mind for 
our constitutional system.
  At the end of this war on terror, it is really about whether we have 
preserved the constitutional system that is going to win the hearts and 
minds of the world to our point of view. It is crucial that we do that 
here tonight by voting to see that we have judicial oversight.
  I thank the gentleman for yielding.
  Mr. HOEKSTRA. Mr. Speaker, I rise in opposition to the motion to 
recommit.
  The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
  Mr. HOEKSTRA. Mr. Speaker, I yield to the gentlewoman from New Mexico

[[Page 20621]]

(Mrs. Wilson), the chairwoman of the Tactical and Technical 
Subcommittee.
  Mrs. WILSON of New Mexico. Mr. Speaker, there are two technical 
reasons to oppose this motion to recommit, and I do not think that the 
authors of the motion to recommit were entirely aware of what they 
would do, but I think the House needs to understand it.
  First, in the motion to recommit, there is no change to the 
definition of electronic surveillance. That means it is not technology 
neutral, and we would continue to have the odd situation when al Qaeda 
calls in to the United States over a radio we could intercept that 
communication completely outside of FISA, but if they call in on a 
wire, we still could not listen. This is why we need to update the 
Electronic Surveillance Act, as the base bill does.
  And, secondly, the exclusivity provision written into the motion to 
recommit says that the only way to collect foreign intelligence in the 
United States is through FISA. That is not current law. Under current 
law, under title XVIII, foreign intelligence information collected 
through criminal proceedings can be shared with the intelligence 
community.
  What this motion to recommit effectively does is rebuild the walls we 
have torn down between law enforcement and foreign intelligence.
  Mr. HOEKSTRA. Mr. Speaker, I thank the gentlewoman for her comments.
  The arguments this evening on the other side have been along the 
lines of FISA does work. The President acted alone and in secret. FISA 
is the only tool that is necessary.
  But we know that that is not true. It does not work. The President 
did not act in secret, and FISA's insufficient.
  It is September 11, 2001, shortly after the attacks. The President 
calls in his National Security Advisor, calls in folks from the 
intelligence community, and says, how do we get a better handle on who 
is attacking us? What other tools do we need to put in place to make 
sure that we can fight and win this war on terrorism?
  They developed their ideas. They identified the strategies and the 
new tactics that they need to fight this war against terrorism 
effectively.
  October 25, 2001, the President convenes and meets with congressional 
leaders and outlines this program to them and with them, or the 
executive branch does, and the group in there recognizes that against 
this enemy FISA does not work and that collaboratively, working with 
the executive branch and Congress, we need to implement new tools to 
keep America safe.
  The terrorist surveillance program that has been used for the last 4 
years is not only the President's terrorist surveillance program, it is 
the terrorist surveillance program of the President, Minority Leader 
Pelosi, Ranking Member Harman, former Majority Leader Daschle, all who 
had the opportunity regularly to review this program, to see how it 
worked, why it needed to be done in the way that it was being done, and 
the benefits that America was receiving from the program and the impact 
it was having in keeping America safe and enabling us to move forward.
  It is because these individuals, working with the President, 
recognize that FISA was insufficient that they agreed to move forward 
with the terrorist surveillance program for almost 4 years, until this 
very valuable tool was leaked by the New York Times. We are a country 
that is less safe because of that. It is why we are now having this 
debate, because now al Qaeda and radical Islamists know more about our 
tools and fighting them than what they did before.
  It is time to update this law, to pass this bill to make sure that we 
can continue providing our intelligence community with tools they need.
  Build on the work of the President, of Minority Leader Pelosi, 
Ranking Member Harman, Majority Leader Daschle, all who agreed that 
FISA did not work and that the President and the executive branch 
needed the authorities and the capabilities that are now outlined in 
its many ways and are brought under more congressional oversight under 
the Wilson bill, and allow for more congressional oversight in a 
defined way through the Wilson bill.
  This is the way we need to go, the direction we need to take because 
we are a Nation at war, under threat, and this is the appropriate 
updating of an old law that the White House but also congressional 
leaders in a bipartisan way agreed did not work.
  Vote against the motion to recommit. Vote for final passage.

                              {time}  2145

  The SPEAKER pro tempore. All time has expired.
  Without objection, the previous question is ordered on the motion to 
recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. SCHIFF. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule 
XX, this 15-minute vote on the motion to recommit will be followed by 
5-minute votes on passage of H.R. 5825, if ordered; and the motion to 
suspend the rules on H.R. 6143.
  The vote was taken by electronic device, and there were--yeas 202, 
nays 221, not voting 9, as follows:

                             [Roll No. 501]

                               YEAS--202

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Carson
     Case
     Chandler
     Clay
     Cleaver
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Cramer
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Duncan
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Flake
     Ford
     Frank (MA)
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Hinojosa
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inglis (SC)
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (IL)
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kolbe
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Mack
     Maloney
     Markey
     Matheson
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Otter
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Peterson (MN)
     Poe
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                               NAYS--221

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chocola
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Cubin
     Culberson
     Davis (KY)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Edwards
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson

[[Page 20622]]


     Fitzpatrick (PA)
     Foley
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Hulshof
     Hunter
     Hyde
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson, Sam
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Manzullo
     Marchant
     Marshall
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Melancon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Oxley
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schmidt
     Schwarz (MI)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--9

     Castle
     Chabot
     Evans
     Inslee
     Lewis (GA)
     Meehan
     Ney
     Strickland
     Stupak

                              {time}  2210

  Mrs. KELLY and Ms. HART and Messrs. SHUSTER, BILBRAY, BURGESS, GOODE, 
LEACH and SHAYS changed their vote from ``yea'' to ``nay.''
  Mr. DOGGETT changed his vote from ``nay'' to ``yea.''
  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  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. HOEKSTRA. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--yeas 232, 
nays 191, not voting 9, as follows:

                             [Roll No. 502]

                               YEAS--232

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bass
     Bean
     Beauprez
     Berry
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boren
     Boswell
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chocola
     Coble
     Cole (OK)
     Conaway
     Cramer
     Crenshaw
     Cubin
     Cuellar
     Culberson
     Davis (KY)
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Edwards
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Foley
     Forbes
     Ford
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Gordon
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Herseth
     Hobson
     Hoekstra
     Hulshof
     Hunter
     Hyde
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson, Sam
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Manzullo
     Marchant
     Marshall
     Matheson
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Melancon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schmidt
     Schwarz (MI)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Spratt
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (FL)

                               NAYS--191

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Becerra
     Berkley
     Berman
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Carnahan
     Carson
     Case
     Chandler
     Clay
     Cleaver
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Flake
     Frank (MA)
     Garrett (NJ)
     Gonzalez
     Green, Al
     Green, Gene
     Grijalva
     Harman
     Hastings (FL)
     Higgins
     Hinchey
     Hinojosa
     Holden
     Holt
     Honda
     Hooley
     Hostettler
     Hoyer
     Inglis (SC)
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (IL)
     Johnson, E. B.
     Jones (NC)
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Leach
     Lee
     Levin
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Mack
     Maloney
     Markey
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (KS)
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Otter
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Stark
     Tanner
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn
     Young (AK)

                             NOT VOTING--9

     Castle
     Chabot
     Evans
     Gutierrez
     Lewis (GA)
     Meehan
     Ney
     Strickland
     Stupak

                              {time}  2219

  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________