[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[Extensions of Remarks]
[Pages 14707-14709]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        IN SUPPORT OF H.R. 6304

                                 ______
                                 

                         HON. PATRICK J. MURPHY

                            of pennsylvania

                    in the house of representatives

                        Thursday, July 10, 2008

  Mr. PATRICK J. MURPHY of Pennsylvania. Madam Speaker, I rise today to 
discuss my support of H.R. 6304--The FISA Amendments Act of 2008.
  From the Revolutionary War to the tragedy of 9/11, America's quest 
for freedom is what defines us. It is imperative that we never forget 
those who died for our liberty, nor can we ignore the failures of our 
own intelligence leading up to that day in September 7 years ago. 
Balancing civil liberties and protecting our national security has been 
a 232 year struggle that represents the core of this great Nation.
  As such, the year-long debate this body engaged in updating FISA has 
hinged on a question that rests at the heart of American democracy 
since its founding: how do we keep our Nation safe, while at the same 
time ensuring the preservation of those Constitutional freedoms that we 
hold dear? It was Benjamin Franklin who warned that those who sacrifice 
liberty for a little security deserve neither.
  When the first effort to amend FISA--The Protect America Act--came 
before this House in August of 2007, I voted against that deeply flawed 
bill because it did not ensure proper protection of our civil 
liberties, nor did it provide the appropriate check over the executive 
branch. In fact, neither the Protect America Act, nor the subsequent 
``Senate compromise,'' included essential oversight provisions. Those 
bills, rather, sought to minimize the role of the FISA court, removing 
any form of meaningful judicial oversight over the President and the 
executive branch.
  My sense of justice as a former prosecutor and my experience as a 
constitutional law professor at West Point led me to the inescapable 
conclusion that our initial attempts to craft the appropriate balance 
failed.
  Madam Speaker, the issue of foreign surveillance predates the 
founding of our very republic--traceable to George Washington, who made 
effective use of secret intelligence, including the interception of 
mail from the British.
  However, I do not need to remind anyone in this Chamber that we have 
not always gotten this delicate balance right. Hindsight has shown us 
that too often in our Nation's past we have tipped the scale too far 
from liberty in the face of outside threats, hostile adversaries, and 
most-troubling simply outspoken American citizens.
  We know many of these excesses: the eavesdropping on Martin Luther 
King, Jr. and anti-war demonstrators, and of course, President Nixon's 
use of Federal resources to spy on political groups. History has judged 
those

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decisions as leaving an enduring stain on our institution and our 
government--as it should.
  In the late 1970s, the Church Committee and this institution worked 
to curb domestic intelligence abuses. Checks and balances were restored 
among the three branches of government, and the ability of our 
government to protect all of us from national security dangers was 
enhanced while at the same time respecting our privacy rights.
  These efforts led to the passage of the original Foreign Intelligence 
Surveillance Act of 1978, placing--for the first time--accountability 
and oversight of domestic intelligence gathering in the hands of courts 
and Congress. FISA also put an end to the practice of warrantless 
domestic wiretapping for national security reasons, mandating that 
domestic ``national security'' wiretaps be authorized by a court of 
law--creating a separation between domestic law enforcement and foreign 
surveillance for national security concerns.
  Again, with that historical perspective in mind, I opposed those 
original proposals and I am glad that the House of Representatives 
staved off partisan ploys to push this body to rubber stamp those 
misguided efforts.
  I believe that the bill we ultimately passed was a significant 
improvement in nearly every aspect over the Senate's or the President's 
proposals.
  Madam Speaker, Mike Schmidt, the greatest third baseman who ever wore 
a glove for the Philadelphia Phillies once said, ``Philadelphia is the 
only city where you can experience the thrill of victory and the agony 
of reading about it the next day.''
  I empathized with Mr. Schmidt when I opened my morning paper the day 
after we voted on this critical piece of legislation.
  That is why, Madam Speaker, I thought it necessary to elaborate on 
why I supported the bill, and clarify some common misconceptions about 
the Foreign Intelligence Surveillance Act and the bipartisan changes we 
recently passed.
  Madam Speaker, my decision to vote in favor of the FISA Amendments 
Act was not one that I came to lightly. As a former prosecutor charged 
to keep our community safe, somebody who has taught constitutional law 
for years to our future military leaders at West Point, and proudly 
served this country in uniform, I thought and prayed long and hard 
about the best course of action. Now, as a member of Congress, it is 
still my duty to defend the constitution and work to keep our community 
safe.
  I believe, Madam Speaker, that this House and this bill ultimately 
struck the right balance.
  The FISA debate in the 110th Congress has been pushed by two events: 
the first, President Bush's unauthorized ``terrorist surveillance 
program,'' conducted outside the scope of FISA; and the second, a FISA 
court decision that most people, including myself, thought was wrongly 
decided and undermined our intelligence capabilities abroad.
  It is widely agreed that no warrant should be necessary to tap the 
phone of a foreign national talking to another foreign national on 
foreign soil. The major point of contention, however--what this year-
long wrangling has been about--is what to do when targeting, for 
example, a terrorist sect in Pakistan whose communications end up 
hitting American soil. Certainly it would be overly cumbersome and 
perhaps dangerous to require an individualized warrant for every 
foreign target in the off-chance their contacts involve an American; 
but correspondingly, assurances must be put in place to ensure that all 
U.S. citizens who might be caught in such surveillance are given the 
protections that they are due as Americans. This, Madam Speaker, was 
the needle we were required to thread.
  The bill ensures that--in order to protect the rights of Americans--
foreign surveillance targeting of non-U.S. persons abroad must be 
approved by the FISA Court prior to the start of any intelligence 
collection to ensure sufficient oversight of executive branch 
activities. This requires the administration to show how they determine 
that the targets of surveillance are actually foreigners and are 
actually located outside the United States. Additionally the FISA Court 
must approve the minimization procedures in place before surveillance 
can begin. Minimization is the process where the NSA prevents the 
dissemination of inadvertently collected information about U.S. 
persons. The bill also establishes a general prohibition against using 
FISA to ``reverse target'' Americans.
  Additionally, the bill requires individual warrants from the FISA 
Court in every single case, based upon probable cause, to conduct 
surveillance of U.S. persons, whether at home or traveling abroad. 
While this provision has not been widely reported, this is an expansion 
of protections under the original FISA bill. For the first time, Madam 
Speaker, an individual probable cause determination and court-approved 
order will be needed to conduct surveillance of every American citizen, 
regardless of where they are located.
  Perhaps most importantly, Madam Speaker, the bill restores FISA and 
existing criminal wiretap statutes as the exclusive means to conduct 
surveillance--making it clear that the no President will be able to 
sidestep the exclusivity provisions of FISA and disregard the civil 
liberties of the American people. Under this legislation the current 
President's illegal program of warrantless surveillance will officially 
come to an end, thereby firmly reestablishing basic judicial oversight 
over all domestic surveillance in the future.
  The other major provision of the bill, Madam Speaker, is title II--
defining the role of liability litigation procedures for 
telecommunication companies. Madam Speaker, to be frank, as a former 
Federal prosecutor and the son of a Philadelphia police officer the 
issue of immunity has always been a tough pill to swallow. Growing up 
in Northeast Philadelphia and schooled at St. Anselm's Parish, I was 
reared in somewhat ``black and white'' terms--wrong-is-wrong and 
punished accordingly.
  But quickly I learned, as a judge advocate and special assistant 
United States Attorney, that at certain times legal immunity is an 
unfortunate necessity to encourage cooperation and testimony against 
those more culpable of committing the underlying offense. Madam 
Speaker, I have never liked seeing people get away with only a slap on 
the wrist, but I have grown to understand it can be a necessary tool to 
insure that justice is served.
  If the telecom companies are ultimately shielded from litigation by 
United State District Courts for their involvement with the current 
administration's illegal warrantless wiretapping program, they should 
be forthright and cooperate with congressional investigators pursuing 
those in the Bush administration who are truly to blame for the 
violation of our constitutional rights.
  But more importantly, Madam Speaker, a principal reason for immunity 
in this instance is to keep civil lawsuits, or the fear of them, from 
establishing Federal policy on a matter of grave national concern--both 
because of the security interests and because of the civil liberty 
interests. This policy should be established and enforced through the 
actions of congress and the executive branch.
  And just to be clear, Madam Speaker, nothing in this bill confers 
immunity on any government official for violating the law. In fact, 
this bill requires the inspectors general of four major national 
agencies to conduct a comprehensive review of the President's 
warrantless surveillance program and report back to the Intelligence 
and Judiciary Committees.
  I promise the families in my district and across the country, that as 
long as I sit on the House Intelligence Committee, and as long as I 
serve in Congress, I will fight every day to demand answers and 
accountability from those who have held themselves above the law.
  Madam Speaker, above all, I would like to note that the bill that 
passed this House was a much needed compromise. And as is the nature of 
any compromise, concessions were made and agreements reached in the 
effort to advance this piece of legislation. While it was not a perfect 
bill, nor is it the one I would have written, it is without question a 
significant improvement over prior flawed proposals.
  Madam Speaker, I would like to take a second to read a quote:
  ``The art of compromise, which is essential to democracy, seems to 
have gone out of style in recent years of angry all-or-nothing politics 
. . . the result is often no legislation, and many issues are left to 
fade or fester.''
  That quote, though eerily reminiscent of our modern political 
paralysis, was published in a Time Magazine editorial--on March 29, 
1976. The editorial, however, continues on and heaps praise on Congress 
and the executive branch for their efforts in overcoming partisan 
gridlock to do what we seek to do--limit unwarranted wiretapping done 
under the auspices of national security.
  It was a compromise crafted by Attorney General Edward Levi and a 
Democratic Congress. A compromise that Time noted ``beats showy 
confrontation, veto and stalemate.'' I think most of us, Madam Speaker, 
can agree that this sentiment rings just as true today.
  Let me be clear. I am no Attorney General Levi, nor do I portend to 
know how history will judge us or this legislation.
  But I can promise that I sincerely believe that this bill--this 
compromise--threaded the needle and I am proud of our efforts.
  Some of my friends on the left are not happy; some on the far right 
are not either. But we all take seriously, the incredible 
responsibility we are given. I hope and pray that history proves our 
fidelity to our Constitution, as well as our commitment to protecting 
the safety of those we serve.

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