[Congressional Record (Bound Edition), Volume 153 (2007), Part 20]
[House]
[Pages 28027-28034]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1845
                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 18, 2007, the gentleman from California (Mr. Daniel E. Lungren) 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, there is no other 
issue more central to the core responsibility of government than the 
duty to protect the safety and security of the American people. The 
right not to be killed is foundational to all other rights. The actions 
we take with respect to the Foreign Intelligence Surveillance Act, 
better known as FISA, will reflect the level of seriousness with which 
we have assumed this fundamental obligation.
  While I take a backseat to no one when it comes to the protection of 
civil liberties, it is essential to understand the proper context of 
the issue by us.
  Mr. Speaker, the focus of the debate here relates to overseas 
intelligence, the implications for the privacy rights of Americans, 
talked about so loudly on the floor last week by our colleagues on the 
other side of the aisle, the implications for privacy rights of 
Americans where surveillance targets of non-U.S. persons overseas is 
minimal to nonexistent.
  This debate over FISA must not be morphed into an ideological crusade 
by those who have such a visceral dislike for President Bush that any 
perceived defeat for this administration is in some perverse way 
chalked up as a victory. The debate is not about President Bush; it is 
about protecting the lives of those who have sent us here to represent 
them.
  And it is serious business. In my estimation, this is perhaps the 
most important issue that we will face here in the 110th Congress.
  It has been my privilege to serve on both the Homeland Security and 
Judiciary Committees. It is my belief that we have made progress in 
protecting the homeland since 9/11. Under the leadership of both 
parties on the Homeland Security Committee, there have been 
disagreements about the particulars, but there has always been a 
bipartisan commitment to moving the ball forward to make our Nation 
safer.
  To be brutally honest, we cannot rely on the prospect of getting it 
right every time someone might seek to come here to kill innocent 
Americans. The idea of having to construct a perfect defense in and of 
itself is not conceivable. However, this is where the role of 
intelligence comes into primary focus.
  Developing a homeland security strategy must not be considered in 
isolation. Intelligence collection overseas is the crucial element in 
any strategy to secure the homeland. Otherwise, we fall prey to what I 
refer to as the Maginot syndrome. You remember the Maginot line. That 
is where the French learned a terrible lesson concerning the folly of 
relying on the idea that they could protect themselves with a focus on 
massive defense perimeter. Much more is required and, again, 
intelligence collection targeting non-U.S. persons can extend our 
homeland defense perimeter overseas.
  Brian Jenkins of the RAND Corporation, a noted expert on terrorism, 
has stressed that our intelligence capability is a key element in our 
effort to protect our homeland. As he says, in the terror attacks since 
9/11 we've seen combinations of local conspiracies inspired by, 
assisted by, and guided by al Qaeda's central leadership. It is 
essential that while protecting the basic rights of American citizens 
we find ways to facilitate the collection and exchange of intelligence 
across national and bureaucratic borders.
  So how do we make sense out of what is taking place in this House 
with respect to our consideration of FISA, the Foreign Intelligence 
Surveillance Act? Foreign intelligence surveillance, I'd like to 
underscore.
  The manner in which we address this crucial national security 
question is a clear measure of our level of seriousness about the 
threat posed to our Nation from another terrorist attack. The bottom 
line question to be asked is whether or not we are safer as a result of 
the action taken by this House concerning the collection of overseas 
intelligence.
  As in the game of football, you're either advancing the ball or you 
are losing yardage. Does our action make America safer or does it 
impose obstacles in the path of the intelligence community which make 
their job more difficult? In making this determination, I would suggest 
that the line of scrimmage should be drawn with the Protect America 
Act. That is the act we passed in early August, on a bipartisan basis, 
responding to the request of Admiral McConnell, the Director of 
National Intelligence.
  We should understand that that act represented a compromise 
reflecting what Admiral McConnell, the Director of National 
Intelligence, identified as absolutely necessary, absolutely necessary 
to the task of protecting the American people. Based upon his service 
to our Nation, I would suggest we should take his considered opinion 
with the seriousness that it deserves. As a career naval officer, 
former head of the National Security Agency under President Clinton for 
4 years, and the current Director of National Intelligence, Admiral 
McConnell has had a distinguished career in his service to our Nation.
  Admiral McConnell and General Hayden came to the Congress with a 
larger package of needed changes to the Foreign Intelligence 
Surveillance Act last April. However, in order to close what Admiral 
McConnell described as gaps in our intelligence, that is, an inability 
for us to be able to actually find the dots that were out there, we had 
to act immediately. A compromise was, therefore, reached by this body 
this past August.
  He defined the concept of ``gap'' to mean this: foreign intelligence 
information that we should have been collecting. In fact, Admiral 
McConnell indicated that prior to the enactment of our Protect America 
Act in August, we were not collecting somewhere between one-half and 
two-thirds of the foreign intelligence information which would have 
been collected were it not for the recent legal interpretations of FISA 
which required the government to obtain prior FISA warrants for 
overseas surveillance. In many cases, we couldn't obtain them. You have 
to have evidence to reach a standard that, frankly, at that stage you 
cannot reach.
  Secondly, the volume of number of targets and the paperwork and, more 
than the paperwork, the intellectual work, the cost in time by taking 
analysts off the job of analyzing, to working up these requests for 
warrants, basically made it impossible for us to be able to go after 
these targets, which we'd always been able to go after in the context 
of FISA as it was passed in 1978.
  What's the problem? The problem is that a definition of electronic 
surveillance constructed almost 28 years ago certainly has not kept 
pace with changes in technology. Ironically,

[[Page 28028]]

when FISA was enacted, almost all international communications were 
wireless. Most local calls at that time were on a wire and fell within 
the definition of electronic surveillance requiring a warrant.
  Today, it's just the reverse. Almost all international communications 
are transmitted by wire. Thus, international communications not 
intended to be covered by the warrant requirement in the 1978 act are 
now inadvertently covered because of the change in technology. This was 
never ever the intention in Congress.
  Again, the act we passed in August closed the resulting national 
security gaps. However, less than 3 months later, here we are in the 
House of Representatives, the leadership of this House is now trying to 
reinvent the wheel. It will be one thing were we considering the other 
elements of a larger package which General Hayden and Admiral McConnell 
presented to us back in April, but that's not the case.
  Rather, the leadership of this body is retreating from the provisions 
of the Protect America Act, which Admiral McConnell told us he needs in 
order to do his job. The so-called RESTORE Act undoes core provisions 
of this compromise that we were told was necessary to close the gaps in 
our intelligence.
  That's why I call the RESTORE Act the Repeal Effective Surveillance 
Techniques Opposing Real Enemies Act, because that's what it does. It 
takes away the techniques that we allowed under the law that we passed 
last August in response to requests from Admiral McConnell based on his 
considered judgment that he was not able to do the job to protect the 
American people from the threat abroad.
  Admiral McConnell affirmed that prior to the Protect America Act the 
intelligence community attempted to work under the law as interpreted 
by the court. Unfortunately, he found that as a result of working under 
those restrictions his agency was prohibited from successfully 
targeting foreign conversations, foreign conversations, that otherwise 
would have been targeted for possible terrorist activity.
  Admiral McConnell has made it clear that although there remains 
elements of the larger package which would further enhance our ability 
to conduct surveillance against al Qaeda and other terrorist groups, 
the Protect America Act, that act that we passed in August which is now 
the law, has provided us with the tools, as he said, to close gaps in 
our foreign intelligence collection.
  Then why are we seeking to make these critical changes in the Protect 
America Act before the ink is barely dry? Well, one thing is certain: 
the immediate reviews by the leftist blogosphere were hardly positive. 
Although Admiral McConnell has worked for both President Clinton and 
for President Bush, much of the criticism of the act in the wake of its 
passage seemed to stem from these objections, now, listen to this, that 
the White House was trying to influence the outcome of the negotiations 
which took place prior to its enactment. Imagine that.
  When Admiral McConnell appeared before our Judiciary Committee, he 
faced questions along the lines of what did the White House know and 
when did they know it. Now, think of this: the idea that the White 
House would seek to have input on issues relating to the national 
security of the United States is about as startling as the discovery 
that gambling, yes, gambling, was taking place in Joe's bar during the 
movie ``Casablanca.''
  This should not be the issue. Again, it's not about George Bush, 
whether you dislike him, love him or are indifferent to him. The only 
valid question is how best we can protect the American public from al 
Qaeda and others who seek to kill us.
  Surveillance of foreign persons outside the United States is a 
central part of that effort, and the bill they presented on the floor 
last week, the so-called RESTORE Act, changed what we had done in 
August to make it difficult, in some cases impossible, to gain that 
information. Even if it is Osama bin Laden on the line calling into the 
United States, under the terms of the bill that was presented on the 
floor, we couldn't use information gathered from that conversation 
against Osama bin Laden unless we went to a court for a court order, 
unless the Attorney General could specifically show that information 
was leading to the death of a particular individual.
  Now, I've said this on the floor before and I will say it again: 
that's just plain nuts. There's no other way to explain it. There is 
absolutely no other way to explain it; and perhaps with an ability to 
explain this kind of thinking on the floor, I would yield to the 
gentlelady from Tennessee to enlighten us as to her observations as to 
what is taking place on the floor on this important issue.
  Mrs. BLACKBURN. Well, I thank the gentleman for yielding and I thank 
him for his leadership on the security issues that affect our great 
Nation.
  And, Mr. Speaker, as the gentleman from California knows, national 
security is one of the major issues that we hear about every single 
day. Our constituents want to be certain that America, that our 
interests, that our communities are safe, and certainly, as we are 
looking at FISA, this is an issue that is coming before us.
  One of the things that we hear regularly from constituents is, what 
are you doing about it? What are you doing about tracking down these 
terrorists? What are you doing about finding those that want to kill 
us? What are you doing?
  Well, we did some good things last year. As the gentleman from 
California mentioned, the provisions that we passed, Admiral 
McConnell's recommendations, the pathway forward for us, how we were to 
proceed to be certain that we could use the information that we had. 
And now the RESTORE Act, and I do like the acronym that he is using, 
Repeal Effective Surveillance Techniques Opposing Real Enemies. That is 
an appropriate acronym for the bill that they brought forward.
  And I think, Mr. Speaker, that our colleagues across the aisle forget 
that it is FISA. Maybe they think it is the U.S. Intelligence 
Surveillance Act, or USISA. They forget that it is FISA, Foreign 
Intelligence Surveillance Act.
  We do seek to find those who would seek to do us harm and end our way 
of life. That is something we should be about every single day.
  Now, we've heard from lots of people on the FISA issue, and the 
gentleman from California brings such a wide range of knowledge on 
this, and I know he is going to be joined by others, others of our 
colleagues who are going to touch on this issue. Many of them are from 
the Republican Study Committee, and they're going to bring their 
expertise to bear on this.
  I want to touch on one quick point. The gentleman from California 
highlighted some of Admiral McConnell's recommendations and procedures 
that we took to be certain that we closed the terrorist loophole. And 
the measure that the liberal leadership brought forward, the RESTORE 
Act, would reopen the terrorist loophole. The Democrat FISA bill 
creates a process by which a court order is required for U.S. persons 
who are outside the United States.
  As the gentleman from California mentioned, if a foreign target 
operating overseas, such as Osama bin Laden, has either had contact 
with a U.S. person or called a U.S. number, our intelligence officials 
would be required, if this bill passed, to obtain a FISA court order to 
listen to those communications.
  Well, in Tennessee, we would say that just doesn't make good sense, 
and it doesn't, Mr. Speaker; and it is frightening to think that there 
are those among us who may want to deal with terrorists more delicately 
than they would handle the welfare and well-being of our communities.
  I would also highlight the New York Post and a comment that they had 
as we were working through the FISA overhaul and looking at these 
situations dealing with these cumbersome legal requirements. The New 
York Post quotes in an October 15, 2007, article: ``A search to rescue 
the men was quickly launched. But it soon ground to a

[[Page 28029]]

halt as lawyers obeying U.S. strict laws about surveillance cobbled 
together the legal grounds for wiretapping the suspected kidnappers. 
For an excruciating 9 hours and 38 minutes searchers in Iraq waited as 
U.S. lawyers discussed legal issues and hammered out the `probable 
cause' necessary for the Attorney General to grant such `emergency' 
permission.''
  We know the emergency. We know the probable cause. Men were under 
attack and they needed to be found. We are in a time of war. The 
terrorists are there to end our way of life. We have to stay a couple 
of steps in front of them, Mr. Speaker; and as the gentleman from 
California has so eloquently said, the way we do this is with a 
commonsense approach and very thoughtful approach to our intelligence 
surveillance that we have on our foreign enemies.

                              {time}  1900

  Mr. DANIEL E. LUNGREN of California. I thank the gentlelady for her 
comments. She mentioned a particular instance in which we brought 
lawyers into a situation that if you looked at it from the outside 
doesn't make much sense; you stop battlefield operations in order for 
lawyers to determine whether or not we can listen in on conversation 
between non-U.S. persons outside the United States.
  When you look at the other side of the aisle's response to this 
problem, you see what they have done is they have elevated the 
judiciary to the primary role in these decisions. That is, in my 
judgment, a complete misunderstanding of the proper role of the courts.
  Look, since Marbury v. Madison, the eminent case basically saying 
that the Supreme Court gets the last say on constitutional issues, 
there has been a misunderstanding by some that that means that the 
Supreme Court, the judicial branch, is somehow superior to the other 
two branches of government.
  That is not the case in the area of war-making capacity or carrying 
out a war. If you look at the Constitution, you will see very, very 
clearly that the Constitution specifies specific powers in article I to 
Congress and in the executive branch in article II, and the United 
States Supreme Court has already told us that there are some matters, 
believe it or not they have said, better suited for disposition by the 
elected branches of government.
  The War Powers Act, or, excuse me, the war power, the right to 
declare war, given to the Congress; powers of the purse, given to the 
Congress. The President possesses authority relating to his 
constitutional status as Commander-in-Chief as well as all executive 
authority.
  So these are very, very distinct. What we have seen on the other side 
of the aisle is an elevation to the altar of judicial determination in 
these cases. This is not just the only thing. The leaders on the other 
side want to take now and give habeas corpus rights to those people we 
have at Guantanamo, those people we have taken off the battlefield.
  Mr. AKIN. One of the problems of being as competent and technical as 
you are is there are some of us, people like me from Missouri, as an 
engineer, like to try to put things in plain simple terms.
  The first thing I would like to ask, because you are the expert, but 
I have a little bit of a sense of what's going on here, and first of 
all the problem is that we are trying to collect intelligence on 
terrorists that are trying to kill our citizens. Is that what we are 
dealing with?
  Mr. DANIEL E. LUNGREN of California. That's a very basic thing we are 
dealing with, foreign intelligence.
  Mr. AKIN. I want to keep it simple. So we are dealing with collecting 
intelligence on these terrorists.
  Mr. DANIEL E. LUNGREN of California. Right.
  Mr. AKIN. We have a format that was put into law years ago, as I 
understand it, that when a signal is transmitted into the air that we 
can tap into that and listen for terrorist talk; is that correct?
  Mr. DANIEL E. LUNGREN of California. Yes, absolutely.
  Mr. AKIN. But now in the last number of years, the way that 
transmissions are made is different. We are going now through these 
fiber-optic cables and through these tremendous switching networks; is 
that correct?
  Mr. DANIEL E. LUNGREN of California. Correct.
  Mr. AKIN. Now, does the current law allow us to do the same thing on 
those as we do on a transmitted signal?
  Mr. DANIEL E. LUNGREN of California. The law, prior to our change in 
August, did not permit us to, at least as determined by the FISA Court 
last year.
  Mr. AKIN. Now we are getting to the problem. The problem is that the 
government is getting in the way and the Democrats are getting in the 
way of us collecting intelligence to protect our constituents.
  Now, the lady from Tennessee, you talked about some common sense, and 
the common sense of the matter is some of us remember September 11, and 
these people are not nice people; right?
  Mrs. BLACKBURN. The gentleman from Missouri is exactly right.
  These are people who do not seek to do us well. They seek to do us 
harm. That, we have to keep in mind.
  As the gentleman from Missouri mentioned, we have had tremendous 
technological changes with how our signals are transmitted when you are 
dealing with telephones, with cell phones, with satellite phones, with 
voice, video and data, with those communications.
  Things have changed, and we are not focused on the end use; we are 
more focused on the technology and the changes that we sought in August 
would allow, and that we gained in August allowed our intelligence 
community to be able to exercise a little bit more leeway in obtaining 
these communications from those who would seek to do us harm.
  Mr. DANIEL E. LUNGREN of California. If I could just respond to that, 
let's remember, we are not talking about domestic terrorists. We are 
not talking about domestic criminals. We are not talking about American 
citizens. We are talking about non-Americans not in the United States. 
That's what we are talking about, and the American people need to 
understand that.
  Mrs. BLACKBURN. I want to bring the attention back to the poster that 
is on the floor there. Just as he would say, this is the Foreign 
Intelligence Surveillance Act.
  As I said earlier, it is not USISA. It is not the United States 
Intelligence Surveillance Act. This is the Foreign Intelligence 
Surveillance Act.
  That is so important that we keep this in mind. As the gentleman 
said, these are people who are not U.S. citizens who are seeking to do 
us harm.
  Mr. DANIEL E. LUNGREN of California. Let me also explain one bill. If 
you look at the bill that the Democratic majority brought to the floor, 
they say, we take care of this problem. They say, if it's foreign to 
foreign, you don't need a warrant.
  Here is the problem that Admiral McConnell explained to us. When you 
put a tap, or you somehow capture the communications, you only know the 
front end of the communications; that is, Osama bin Laden is calling 
somewhere and communicating in some way. You don't know where in the 
world he is going to end up on the other side of the communication. If, 
in fact, you have to say ahead of time, we can guarantee that none of 
those conversations will ever reach into the United States or to an 
American anywhere, you couldn't get a prior warrant, because you can't 
guarantee that.
  What you need to do is to do it the way Admiral McConnell suggested 
and the way we put it in the law before. If it's a target that is a 
foreigner in a foreign country, for foreign intelligence purposes, as 
defined under the law, if that's the case, you don't need a warrant.
  If, as you collect the communications in some way, you find that 
inadvertently a communication went into the United States or is with an 
American citizen, you do what we call, under the law, minimization, 
which means, if it has nothing to do with that individual on the other 
end that implicates that

[[Page 28030]]

individual in any way, you don't use it. But you do use it against 
Osama bin Laden.
  What they put in the bill was, very specifically, if we inadvertently 
capture a communication that involves an American on the other side, 
guess what we have to do? We cannot use it. We cannot disclose it. We 
cannot use it for any purpose, and we cannot keep it for more than 7 
hours unless we go to a court and get another court order for a 
warrant.
  Mr. AKIN. But if the gentleman would yield, what I understand the 
Democrat solution is saying, that you can't do that. That as soon as 
Osama bin Laden lights up his computer, we don't know where he is 
calling to, and, therefore, we have got to get some judge to give us 
permission to tap into.
  Mr. DANIEL E. LUNGREN of California. Let's understand what we are 
talking about. I presume Osama bin Laden is sharp enough to realize 
that maybe he ought to have more than one phone line. You know what we 
have with bad guys in the United States, they use cell phone after cell 
phone after cell phone. They use it for maybe a day. They throw it 
away. They use another one.
  Don't you think the bad guys trying to kill us are as smart as that? 
We have to be able to be sharp enough to find this stuff and turn on 
this information in a timely fashion to save us. We have to have the 
agility to do that. What has happened with the law we passed in August, 
according to the NSA, and I was out there yesterday, and according to 
Admiral McConnell, we are now able to do those things.
  We now have the agility to do those things. If we were to adopt the 
bill that was on the floor last week, we couldn't do it. The American 
people have to understand, no matter what they say about it, the expert 
on it tells it, we would not be able to do it.
  Mr. AKIN. So my understanding, with the bottom line, with the bill 
that has been proposed, we would lose about 60 percent or more of our 
intelligence leads that we are collecting through electronic 
surveillance needs; is that correct?
  Mr. DANIEL E. LUNGREN of California. That is the absolute testimony 
of the experts who actually do it.
  Mr. AKIN. Sixty percent of our intelligence-gathering capability is 
going to be hobbled?
  Mr. DANIEL E. LUNGREN of California. Against terrorist targets 
internationally, absolutely. In the process, we will grant more 
protection under the law to Osama bin Laden than we do to an American 
citizen accused of a crime in the United States. That is the utter 
insult in the whole process.
  Mr. AKIN. Yet in the State of Missouri we don't call that common 
sense.
  Mr. DANIEL E. LUNGREN of California. I don't think anybody could call 
that common sense. Only on the floor of the House of Representatives 
would one dare to call that common sense. I am not one person who 
dares, nor are my two colleagues here.
  Mrs. WILSON of New Mexico. I want to make sure I understand something 
here, because I think you said something that's important. If the 
United States Government inadvertently collects a phone call that 
involves an American, if Osama bin Laden himself calls into the United 
States on a new phone line, and we had no idea, we didn't expect him to 
call in to America, and he has got a new phone number, he has got one 
of those disposable phones, he calls in and we get lucky and we pick it 
up, and that phone call says to one of his cells in the United States, 
``Tomorrow is the day. Blow up the Sears Tower in Chicago,'' is it my 
understanding that under this bill they have put forward the 
intelligence agents couldn't even tell law enforcement about that? They 
would be prohibited from that?
  Mr. DANIEL E. LUNGREN of California. Unless that cell had already 
been identified by us, we knew who they were, we had already gotten 
legal permission to do that, we wouldn't be able to do that.
  Mrs. WILSON of New Mexico. So we get the intelligence tip of a 
lifetime to be able to prevent the next terrorist attack, and this 
bill, the RESTORE Act, would prevent us from protecting American 
citizens?
  Mr. DANIEL E. LUNGREN of California. Absolutely. Let me tell you what 
happens in a criminal case. Let's say we have a legitimate wiretap on a 
member of the Mafia, and that person makes calls. We don't know who he 
is going to call. He calls his mother. He calls his barber. He calls 
the guy who delivers pizza.
  Because he talks to that other person who was not the target, the 
legal target, doesn't mean that we cannot use that information against 
the legal target. We can't use it against that person if that person is 
someone we then find is a person of interest, and we would become a 
target. Then we have to go get a warrant against that person. That's 
all that we are saying we ought to do with the law and, in fact, that 
is what you would do with the law that you passed.
  As a result, we have really put handcuffs in our ability to deal with 
terrorism far much more than people would argue that we would do in 
terms of law enforcement.
  Mrs. WILSON of New Mexico. I thank the gentleman for clarifying that, 
because I think it's an important provision, and I think it is being 
added into what is being called the RESTORE Act very late in the game 
before it was pulled from the House floor last week. It is a provision 
that is deadly dangerous to the security of this country.
  The Foreign Intelligence Surveillance Act was set up to protect the 
civil liberties of Americans, and it has done that effectively. But 
because of changes in technology over the last decade in particular, 
there are more and more conversations that are foreign conversations, 
international conversations that happen to transit the United States. 
Under the old law, before we fixed this in early August, you needed a 
warrant to touch a wire inside the United States even if the person you 
are targeting is overseas.
  Earlier this year, because of some court decisions, this became 
completely unmanageable, and the Foreign Intelligence Surveillance 
Court became almost completely nonfunctional, with backlogs, with 
requests for warrants, people who couldn't develop probable cause, 
because, you think about this, you have got some guy on the Horn of 
Africa that you suspect of being affiliated with al Qaeda. It's not as 
if the FBI can go and talk to their neighbors and develop probable 
cause for a warrant in order to touch a wire in the United States, and 
yet our intelligence capability is much enhanced if we can touch that 
wire in the United States.

                              {time}  1915

  So you have an odd situation where we're having intelligence agents 
take tremendous risks to try to collect intelligence overseas, while 
we're tying our own hands here in the United States. The law that we 
passed in early August addresses this problem.
  The act that was pulled from the floor, so-called RESTORE Act, last 
week would only have restored the ability of terrorists to plot to kill 
Americans. It would be suicide for the United States to intentionally, 
intentionally cut off our ability to try to listen to the 
communications of the terrorists who are trying to kill Americans or 
anybody else.
  I would be happy to yield to my colleague from New York.
  Mr. DANIEL E. LUNGREN of California. Let me just reclaim my time for 
a moment. And remembering last week when we had this bill on the floor 
and we went before the Rules Committee to ask for an opportunity for 
amendment and debate on our important issues and we were denied that by 
a gag rule, I would like to yield to the gentleman for purposes of a 
short debate, because I think this is what we should engage in and why 
I was so disappointed last week on the rule.
  Mr. NADLER. I appreciate the gentleman yielding to me. And I wasn't 
planning to debate this; I just happened to be walking through the 
Chamber and I heard what you were saying. People are entitled to their 
opinions, but they're not entitled to misquote what the bill does, 
which is what I've been hearing.
  First of all, it is quite correct, as the gentlelady from New Mexico 
said, that the FISA law needed to be updated.

[[Page 28031]]


  Mr. DANIEL E. LUNGREN of California. Well, if I could take back my 
time, if the gentleman would specifically say where we misstated, I 
would love to respond to that. But the gentleman can get his own time 
to talk about other things.
  Mr. NADLER. I will say two things. Number one, the RESTORE Act, the 
bill that was pulled from the floor, number one takes care of that 
technological problem, just as the bill that was passed in August does, 
by updating and making clear that foreign-to-foreign communications 
that come through a server in the United States do not need a warrant. 
So that's not an issue because this bill does it.
  Second of all, let me just make the two points. And second of all, I 
think I heard you say, both of you, somebody here, that if you were 
tapping some terrorist abroad and he called into the United States and 
you heard him talk about terrorism with somebody in the United States, 
that you could not tap that, you could not use that information. That's 
simply not true.
  Mr. DANIEL E. LUNGREN of California. I will reclaim my time. The fact 
of the matter is that is true. I hope to get the language here in a 
moment. In the manager's amendment, in the second major paragraph of 
the amendment, it specifically refers to inadvertent capture of a 
conversation involving an American on one end. And in those cases it 
specifically said, if that is the case, you may not use it for any 
purpose, you may not disclose it, and you may not keep it for more than 
7 days, unless you get a specific warrant with respect to that, or the 
Attorney General makes a specific finding that the information itself 
relates to the death of an American.
  Now, the fact of the matter is that was picked up from language 
that's currently in FISA that has nothing to do with this, that has to 
do with inadvertent communications gained in another context. So I 
don't know whether it was inadvertent, it was bad draftsmanship, or it 
was intentional. But the fact of the matter is, on its face, that is 
exactly what it does, and that's why I can stand here and say, without 
fear of contradiction, that it gives greater protection to Osama bin 
Laden in that instance than we give to an American charged with a crime 
in the United States.
  Again, I don't know what the purpose was in drafting it that way. 
That's one of the problems when you bring a bill to the floor and you 
have a closed rule that doesn't even allow us to question the language, 
to attempt to deal with it. And the gentleman can say it doesn't say 
that. I would suggest the gentleman go back and look at the specific 
language, because I was astounded when I first read it. I first looked 
at it and said, this can't possibly be the way. I presented it to the 
Rules Committee. Not a single person on the Rules Committee or a member 
of your side of the aisle on the Judiciary Committee or the 
Intelligence Committee contradicted what I had to say. No one pointed 
to where that was wrong. That happens to be in the bill. Now, if you 
want to change it, we ought to change it. But the fact of the matter is 
that's where it is.
  Mrs. WILSON of New Mexico. If the gentleman would yield, the issue of 
foreign-to-foreign communications is in the bill. But here's the 
problem. We can put in law that you don't need a warrant to listen to 
foreign-to-foreign communications, but you're never targeting a 
communication between two points. You're always looking at one target. 
And if I am targeting you in Afghanistan, I don't know who you're going 
to pick up the phone and call next. If it is a felony to listen to a 
conversation between a foreigner and a U.S. person without a warrant, 
as soon as that foreigner picks up the phone and dials an American 
number, you've created a situation where an intelligence agent is a 
felon. As a result, if you have that provision in the bill, they must 
get warrants on every foreigner. And that is the situation we were in 
earlier this year that completely crippled our intelligence collection.
  Mr. DANIEL E. LUNGREN of California. Let me just reclaim my time to 
specifically quote Admiral McConnell on this point. He said in 
testimony before the Judiciary Committee: ``When you are conducting 
surveillance in the context of electronic surveillance, you can only 
target one end of the conversation. So you have no control over who 
that number might call or who they might receive a call from.'' He then 
said specifically: ``I'm talking about foreign-to-foreign and whether 
that takes care of the problem.''
  These are his words. If you have to pre-determine that it's foreign-
to-foreign before you do it, it is impossible. That's the point. You 
can only target one. If you're going to target, you have to program 
some equipment to say, I'm going to look at number 1, 2, 3, so 
targeting, in this sense, if you are targeting a phone number that is 
foreign. So that's the target. The point is that you have no control 
over who that target might call or who might call that target.
  Mr. NADLER. Will the gentleman yield at this point?
  Mr. DANIEL E. LUNGREN of California. I'll be happy to yield in one 
second. I found that I did have the specific language to which I 
referred a moment ago. This is the proposed language in the bill: ``If 
electronic surveillance concerning foreign-to-foreign communications 
inadvertently collects a communication in which at least one party to 
the communication is located inside the United States or is a United 
States person, the contents of such communication shall be handled in 
accordance with minimization procedures adopted by the Attorney 
General.'' If that's all it said, that would be fine. But then it says: 
``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 7 days, unless a court order is 
obtained or unless the Attorney General determines that the information 
indicates a threat of death or serious bodily injury.''
  Reading that, as it is written, if Osama bin Laden, in a 
conversation, communication or whatever to someone who happens to be a 
U.S. person or is in the United States that is not then a target, under 
the regime that we have, doesn't implicate that individual whatsoever, 
but in the course of the conversation, reveals where he is, where he's 
going to be, we cannot act on that information under this specific 
language unless the Attorney General determines the information 
indicates a threat of death or serious bodily injury. Telling where he 
is doesn't indicate a threat of death to anybody or serious bodily 
injury to anybody.
  That's the language that your side has presented on the floor as a 
fait accompli. We could not amend it. We couldn't even discuss amending 
it on the floor because we had a gag rule.
  And the gentleman is a distinguished attorney. He knows how to use 
words very, very well. You can't change the words that are on the 
printed page.
  Let me yield to my friend from Missouri before I yield to the 
gentleman from New York.
  Mr. AKIN. Now, there was one procedure that the Republicans were 
allowed to do, and that's called the recommit; is that correct? We 
couldn't make any amendments. We couldn't discuss it.
  Mr. DANIEL E. LUNGREN of California. Motion to recommit, yes.
  Mr. AKIN. And so on the motion to recommit, we did the best thing we 
could to try to fix this problem, which was going to basically muzzle 
60 percent of our intelligence-gathering capability. And that, I guess, 
you could look at it as an amendment on the motion to recommit. It was 
merely a sentence or two. And that sentence said something to the 
effect that nothing in this bill will prevent us from trying to capture 
bin Laden or prevent us from gathering information on al Qaeda, and 
they're attacking this country, something to that effect.
  Mr. DANIEL E. LUNGREN of California. Al Qaeda, Osama bin Laden or 
other terrorist groups and prevent attacks on the United States or 
Americans. That was the language. And I might say to the gentleman, it 
was never offered, we never got to that point. But rather than have a 
gag rule or follow the leadership we got from

[[Page 28032]]

the Democratic side, of a gag rule, we also showed it to the other side 
way ahead of time. And the reaction was what? To pull the bill, or at 
least to stop in mid-debate on the bill, and we will bring it back.
  Mr. AKIN. It was in such a hurry that we didn't have time for any 
amendments.
  Mr. DANIEL E. LUNGREN of California. Well, let me yield to the 
gentleman from New York. Perhaps the gentleman from New York can tell 
us when the bill is coming back to the floor.
  Mr. NADLER. I can't because I don't know that. I don't know that. 
Presumably sometime in the next 2 weeks. But would you yield now?
  Mr. DANIEL E. LUNGREN of California. I'd be happy to yield to the 
gentleman.
  Mr. NADLER. Thank you. Two points. One, what was just said about that 
motion to recommit, the contents of the motion to recommit, that 
nothing shall be construed as barring, tapping or wiretapping, whatever 
the language was, bin Laden, Osama bin Laden, al Qaeda, et cetera, was 
completely unobjectionable. Indeed, it was totally superfluous. Had 
that motion said the motion is to recommit the bill to committee to 
amend it to include these words, and to report the bill back forthwith 
so we could have continued the debate, we would have accepted that 
amendment. We would have said fine. It doesn't change anything. Fine.
  But, as you know, the amendment said report back promptly, which 
would have entailed at least a 2-week delay. That's why the bill was 
pulled, not because of the subject matter, but because of the word 
``promptly.''
  Mr. DANIEL E. LUNGREN of California. If I might take my time on that 
point. Promptly means it goes back to committee. It doesn't say it 
can't come back for 2 weeks. It goes back to committee.
  Now, we have some rules here that require a few days. We also have 
something called waiver of rules that has happened virtually on every 
rule that we've had here, presenting a bill to the floor. And let me 
ask the gentleman, if, in fact, your concern was it would be a delay of 
a week or two, what are we doing now?
  I would yield to the gentleman.
  Mr. NADLER. I will answer to the best of my knowledge. I don't know 
what we're doing now. I'm not part of the leadership. And as I said, I 
just happened to be walking here. I don't know why the bill isn't back 
here now. But I know it will be in the next week or so.
  Mr. DANIEL E. LUNGREN of California. So it's the gentleman's 
statement that you're willing to accept the motion to recommit, and 
your side is the leadership.
  Mr. NADLER. Yes. The language was unobjectionable.
  Mr. DANIEL E. LUNGREN of California. Well, that's good to hear. Then 
we will expect to see that language in the bill when it returns.
  Mr. NADLER. Had it said forthwith, it would have been, and I 
shouldn't speak for the leadership but that's what they were saying at 
the time, we would have accepted it. But because it said promptly, 
which the Parliamentarians have told us would entail a considerable 
delay.
  Mr. DANIEL E. LUNGREN of California. I'm sure glad we're not delaying 
now. But go ahead.
  Mr. NADLER. Well, we found out, by the way we thought the Senate was 
going to pass the bill the next day. It turns out they haven't got 
their act together, so we have a little more time.
  Mr. DANIEL E. LUNGREN of California. The Senate was going to pass a 
bill. Not that bill.
  Mr. NADLER. Yes, it was going to pass a different bill. We wanted to 
pass a bill before they did, so that's why we were in a hurry.
  But getting back to the point we said a few minutes ago, I don't have 
the benefit of the language. I know you have it there from the 
manager's amendment which I haven't seen, or the context. But I do know 
the following: The whole point, Admiral McConnell is quite correct when 
he says, obviously, if you're tapping whoever in a foreign country, you 
don't know who he's going to call. You're tapping that one point. 
You're tapping Mohammed in Karachi because you know that he, you 
suspect he's a terrorist that's involved. If he calls someone else 
abroad no one thinks you need a warrant or anything else. Under the 
bill, if he calls someone in the United States, either you hear it, you 
can't help hearing it. Either that conversation is innocent or it's 
involved with something that makes you suspicious of terrorism. If it's 
innocent, you have to engage in minimization procedures so you don't 
unduly and inadvertently violate the privacy of some American for an 
innocent conversation. If it's not innocent, then you, with that 
information, you can continue listening and if necessary you can get a 
warrant. And that's the general design of the amendment.
  Mr. DANIEL E. LUNGREN of California. I'll take back my time. That's 
precisely the problem. You have to get a warrant before you can take 
action. And if, in that conversation, something that Osama bin Laden 
said does not implicate the American whatsoever, does not indicate a 
threat of death or serious bodily injury to anybody else, but reveals 
where he is, you are prohibited from dealing with that.
  The gentleman from New York, I appreciate it. But you know, the great 
political philosopher, Don Meredith, once said: ``If if and buts were 
candy and nuts, everyday would be Christmas.'' Now you may wish it. You 
may hope it. You may think it. These are the words that your side 
presented to us as a fait accompli. That's what it says. You can't get 
around it. And the gentleman, as a distinguished attorney, knows that 
when you go into court you've got to look at the words. We're not going 
to put people at risk in the CIA, in the FBI and the NSA, in all of 
those other agencies in the Department of Justice based on the fact 
that we ought to read these, as I think the gentleman said once before 
in debate, in a commonsense way.

                              {time}  1930

  There is no commonsense exception to this provision in the law.
  I would be happy to yield to the gentlewoman from New Mexico.
  Mrs. WILSON of New Mexico. One of the things my colleague from New 
York said was, well, there are these minimization procedures, and 
that's true. There are minimization procedures under current law, which 
means that if you gather information that involves innocent people, you 
mask their identity, you don't disseminate things that don't matter, 
and you protect people's privacy. If it only went that far, that would 
be fine. The problem is the rest of the paragraph that my colleague 
from California mentioned, which actually prohibits dissemination of 
information that could be critical to this country.
  It is astounding to me that we might actually intercept a 
conversation involving Osama bin Laden himself that reveals where he is 
going to be tomorrow and we would prohibit our intelligence agencies 
from telling the military where he is so they could target him.
  Mr. DANIEL E. LUNGREN of California. Reclaiming my time, not only 
could we not disseminate, but this is the language: ``or used for any 
purpose.'' That's pretty broad, I would say.
  Mrs. WILSON of New Mexico. Absolute prohibition.
  And I think we need to get back to some basics here, which is, number 
one, the current law requires that you need a warrant to wiretap a U.S. 
person for the purposes of collection of foreign intelligence. That's 
what the whole Foreign Intelligence Surveillance Act was about. But it 
also makes clear under the law that we passed in the first week of 
August that you do not need a warrant to listen to foreigners 
reasonably believed to be in a foreign country.
  America spies. We try to discover the secrets of people who are not 
our friends, some of whom are trying to kill large numbers of 
Americans. We do everything we can to find out what their plans and 
capabilities and intentions are so we can prevent another terrorist 
attack. That is what our intelligence community does. And to

[[Page 28033]]

somehow tie this up in red tape with a bunch of lawyers and judges 
makes no sense to me at all when we are trying to find out the secrets 
they are desperately trying to protect from us.
  I have to say, there is a question, how many lawyers should it take 
to be allowed to listen to Osama bin Laden? The answer should be zero. 
That's what the answer should be. We shouldn't involve lawyers and 
judges in trying to intercept his communications, even if he is talking 
to an American.
  Mr. AKIN. Will the gentleman yield?
  Mr. DANIEL E. LUNGREN. I would be happy to yield after I make this 
one statement in reference to what the gentlewoman just said.
  Judge Richard Posner of the Seventh Circuit Court of Appeals put it 
this way: ``The aim of national security intelligence is to thwart 
attacks by enemy nations or terrorist groups rather than to punish the 
perpetrators after an attack has occurred. The threat of punishment is 
not a reliable deterrent to such attacks, especially when the attackers 
are fanatics who place a low value on their own lives and when the 
potential destructiveness of attacks is so great that even a single 
failure of deterrence can have catastrophic consequences. That is 
why,'' the judge says, ``when the government is fighting terrorism 
rather than ordinary crime, the emphasis shifts from punishment to 
prevention.''
  The judge has put it fairly well in almost understandable terms, as 
the gentleman from Missouri would say.
  And I yield to the gentleman from Missouri, who would not like to be 
described as an attorney.
  Mr. AKIN. Well, I appreciate the good work that attorneys do, Mr. 
Speaker, and I particularly like different attorney jokes. And this one 
particular joke is the only one I have heard that isn't funny, and that 
is, how many attorneys does it take to collect intelligence on our 
enemies? And the answer, exactly as the lady said, should be zero. 
There should be no doubt about this.
  Now, you have talked about somewhat subtle or finer points of law, 
but the bottom line is there is an agency that is charged with 
following the law and protecting our citizens. Now, the opinion of that 
agency on this point is what is critical, isn't it? Because if they 
believe they can't do the collection, then there is going to be 60 
percent or more of intelligence gathering that is going to be hobbled. 
They are not going to have that capability. And their belief is that 
what you are saying is true because you quoted them; is that right?
  Mr. DANIEL E. LUNGREN of California. That is true. And I would say it 
is similar to going to the doctor and the doctor's telling you that you 
need an operation to repair a faulty valve in your heart, and before 
you make the decision, you have to go to a judge to get permission to 
follow the doctor's order. I don't think that's what I would want to 
do.
  Mrs. WILSON of New Mexico. Will the gentleman yield?
  Mr. DANIEL E. LUNGREN of California. I would be happy to yield.
  Mrs. WILSON of New Mexico. I know we are coming to the end of this 
hour, but I think there is something important for Americans to 
understand.
  We all remember where we were the morning of 9/11. We remember what 
we were wearing, what we had for breakfast, whom we were with, and that 
is seared into our memories.
  Very few Americans remember where they were when the British 
Government arrested 16 people who were within 48 hours of walking onto 
airliners at Heathrow and blowing them up simultaneously over the 
Atlantic. We don't remember it because it didn't happen. And it didn't 
happen because American, British, and Pakistani intelligence were 
working together to disrupt the plot and prevent the terrorist attack.
  That is what matters here. We want to stop those memories from being 
created before the event happens.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I would just like 
to say, because we keep hearing that we are not concerned about civil 
liberties and so forth and that courts ought to look at this rather 
than making decisions by the President of United States, many people 
fondly remember Justice ``Whizzer'' White on the United States Supreme 
Court, an appointee of President John F. Kennedy. And in the seminal 
case in the Supreme Court dealing with the question of privacy and 
wiretapping called Katz versus U.S., he said this: ``We should not 
require the warrant procedure and a magistrate's judgment if the 
President of the United States or his chief legal officer, the Attorney 
General, has considered the requirements of national security and 
authorized electronic surveillance as reasonable.'' Because the fourth 
amendment talks about protection against unreasonable searches and 
seizures and we never hear on this floor that qualification. It is 
reasonable.
  So how do we protect American citizens in this? The process of 
minimization that we talked about that is followed by everybody in the 
NSA. And I would just show this to the gentleman. This chart shows the 
procedures already put into place at the NSA, National Security Agency, 
to implement the Protect America Act and ensure that Americans' civil 
liberties are protected by minimization.
  Look at this: Internal oversight, they have training built on the 
foundation of compliance training. They have an annual requirement to 
read the legal compliance and minimization documents. They have 
advanced training and a competency test. Everybody out there has to 
take the test and pass or they can't be involved in the program. They 
have new training in the authority and the competency test. They 
understand the legislative changes, the documentation and the 
termination. They have spot checks and audits to assess compliance. 
They have somebody else come out within their organization and check up 
on individuals. And then they have an assessment of management 
controls.
  In other words, they have multiple reviews on a regular basis of 
what's going on there. And in addition, what they have done is they are 
subjected to oversight by the Office of the Director of National 
Intelligence and the Department of Justice every 14 days, every 30 
days, and every 60 days. And then on top of that, they have the 
Congress that can look at things.
  That, the American people should understand, is the seriousness with 
which the agency is undertaking their responsibility to protect 
Americans from terrorists overseas and to make sure there is no 
inadvertent violation of the civil liberties of Americans.
  Mr. AKIN. Will the gentleman yield?
  Mr. DANIEL E. LUNGREN of California. Yes, I would be happy to yield.
  Mr. AKIN. I believe that what you have described is pretty much what 
we worked out last summer. Just going back to last summer when this 
problem reared its ugly head, we were approaching September 11. The 
Democrats had been unwilling to deal with it. We had been going back 
and forth and back and forth. And as I recall, we basically told the 
other party we are not leaving for summer break until you get this 
thing fixed because our Nation is exposed. We are not collecting the 
information that we need and we have to deal with that. So at the last 
minute, we passed a 6-month, if you will, patch that takes us to 
February; is that correct?
  Mr. DANIEL E. LUNGREN of California. That is correct.
  Mr. AKIN. So until February we are able to do this collection at this 
point, but we have to deal with this problem.
  Now, the gentlewoman from New Mexico made reference to September 11, 
and I think each of us have our own memories. But mine was being at the 
site in New York City and seeing that wall along the side of a city 
block, four-by-eight sheets of plywood. Covering over the wall was a 
piece of that kind of slick, greasy plastic that's waterproof, and it 
had little dots of mist because it was a misty day. And underneath it 
were pictures. Some black and white, some in color, a picture of a guy 
with his dog, a husband and wife. And as I looked at those pictures, it 
reminded me of the many times in the morning where eyes had met gently 
saying good-bye for the day, a gentle brush of the hair that would be 
no

[[Page 28034]]

more, that ended in violent, fiery tragedy and death. And for us to 
hobble our Intelligence Committee and knock out 60 percent of their 
intelligence gathering is un-American, it is something that we will not 
tolerate in this Chamber, and until we get it right, I will never be 
quiet on this subject. And I know the gentleman feels as strongly as I 
do.
  Mr. DANIEL E. LUNGREN of California. I appreciate the gentleman's 
sentiments. And I would just say I don't think there is anybody in this 
Chamber that depreciates the experiences of 9/11 nor the threat that 
currently faces this country. That does not excuse anybody in this 
Chamber or us collectively for making either ill-informed decisions or 
just wrongheaded decisions. And when we have the expert experience and 
judgment of people like Admiral McConnell, who told us of the threat 
that we are currently facing and his inability to do the job that he 
has sworn an oath to do, and when we responded in a way which he said 
works, it is totally beyond belief that we would want to change that 
now.
  And the other thing is, is there anybody in this Chamber that 
believes the threat is only until February or is only for 2 years, as 
was in the bill that was presented to us? This is a long-term threat 
which necessitates a long-term commitment on the part of the American 
people, on the part of the Congress, on the part of the entire Federal 
Government. And we have an obligation to make sure that that takes 
place. Otherwise, the American people have every right to say to us you 
have not done the job.
  So I would hope that when we have this bill on the floor we have an 
opportunity to make it permanent so that we can tell our adversaries we 
will throw everything at you, not to convict you after a perpetration 
of an attack on us but to prevent it in the first place. The American 
people don't want prosecution. They want prevention first and foremost.
  Mr. AKIN. If I could just interrupt for a minute, I don't think any 
of us want to impugn anybody's motives. Our objective here is and the 
reason we were sent here by our constituents is to solve problems, 
which you have outlined is a reasonable balance between the privacy 
rights of Americans and the necessity of the government to do what it 
is number one tasked to do, which is to protect our citizens. But when 
we get that balance wrong and the director of the people that have to 
collect that intelligence say that we have got to have judges, you are 
going to knock out more than half of our intelligence-gathering 
capability, then it says we need to get back to the drawing board and 
get this thing done the right way.
  I certainly appreciate your attention to the details to looking at 
the language. And I certainly hope that our Democrat colleagues will 
allow enough debate and discussion to solve the problem.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the 
gentleman for his words.
  And let me just finish on these words. Justice Robert Jackson of the 
U.S. Supreme Court once said, ``The Constitution is not a suicide 
pact.''

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