[Congressional Record (Bound Edition), Volume 154 (2008), Part 3]
[House]
[Pages 3311-3318]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          PROTECT AMERICA ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 18, 2007, the gentleman from Texas (Mr. McCaul) is recognized 
for 60 minutes as the designee of the minority leader.
  Mr. McCAUL of Texas. Mr. Speaker, I rise today in support of the 
Protect America Act, and I urge the Democratic leadership in the House 
to bring to the floor the bipartisan bill that was passed in the Senate 
overwhelmingly which brought this act to permanency.
  Unfortunately, last month what we saw was, on February 15, this act 
did not come to the floor; rather, it expired. The Democratic 
leadership failed to bring that to the House floor. And with the 
expiration of the Protect America Act, our intelligence communities 
went dark in many parts of the world.
  This is a game of dangerous politics. It is putting the American 
people at great risk as every day passes. I urge again the Democratic 
leadership to bring the bipartisan Senate bill to the floor so that 
democracy can operate, because the American people support this 
bipartisan legislation that the Senate passed and we need to pass it 
now to protect American lives. If I can just step back and give this 
some context.
  The Foreign Intelligence Surveillance Act actually passed in 1978, 
during the Cold War. It was a time, again, during the Cold War, not the 
threat that we face today, a very different threat. The FISA Act, 
because the technology now has outdated the law, needs to be 
modernized. And that is exactly what the Protect America Act does.
  The Director of National Intelligence came to the Congress last year 
to tell us that we needed this modernization because there are 
dangerous loopholes and intelligence gaps in our collection capability, 
and that needed to be fixed. Many of us here in the House listened to 
that warning, answered that call, and voted in a very bipartisan way 
last August for the Protect America Act. Unfortunately, as I stated, 
last month, on February 15, the Democratic leadership allowed that act 
to expire, again placing Americans in grave jeopardy.
  And what did we hear from the Democratic leadership at that time? 
Majority Leader Steny Hoyer said, there really is no urgency here; the 
intelligence agencies have all the tools that they need. Chairman 
Silvestre Reyes at the time said, Things will be just fine. Things will 
be just fine.
  But things aren't fine. And all you have to do is look at a letter 
that we received in the Congress from the Director of National 
Intelligence and the Attorney General pointing out the grave risk that 
this expiration is giving to the American people. They said: The 
expiration of the authorities in the Protect America Act would plunge 
critical intelligence programs into a state of uncertainty, which could 
cause us to delay the gathering of, or simply miss, critical foreign 
intelligence information. And then, they say, that is exactly what has 
happened since the Protect America Act expired days ago without the 
enactment of the bipartisan Senate bill.
  This is the Director of National Intelligence, a man who served under 
Democrats and Republicans. This is the Attorney General of the United 
States. They said we have lost intelligence information this past week 
as a direct result of the uncertainty created by Congress' failure to 
act. I submit that this is not only a failure to act; it is a 
dereliction of duty to the American people. We have the most solemn 
obligation first and foremost to protect the American people. Mr. 
Speaker, we are failing in that obligation in the House today.
  Intelligence is the best weapon we have in the war on terror. 
Intelligence is the first line of defense in the war on terror. And, if 
I could step back to 1993 and tell a story.
  I used to work in the Justice Department. I worked on FISAs. In 1993, 
an individual named Ramzi Yousef came in the country with a fake Iraqi 
passport, and he plotted to bring down the World Trade Center. 
Fortunately, he wasn't successful that day, although he did kill 
people. Innocent lives were lost, and he caused great damage to these 
buildings. He fled, ended up eventually in Islamabad in Pakistan, where

[[Page 3312]]

he met up with his uncle, Khalid Shaikh Mohammad. Khalid Shaikh 
Mohammad of course is the mastermind of September 11. There, they 
talked about the idea of flying airplanes into buildings.
  Eventually, Ramzi Yousef was caught in Islamabad and brought back to 
justice. But the intelligence that we missed back then because some of 
the flaws in the system, the 9/11 Commission studied this and they made 
several recommendations. And, of course, at the time they analyzed what 
we passed in the PATRIOT Act to fix this problem, that being the fact 
that a wall separated the criminal division from the foreign 
counterintelligence. The left hand literally didn't know what the right 
hand was doing. This caused great consternation within the Justice 
Department and within the intelligence community. I remember working 
before the PATRIOT Act passed and I remember some of these frustrations 
myself.
  There is a great quote from an FBI agent who was frustrated with 
this. He said: You know, someday someone will die and, wall or not, the 
public will not understand why we were not more effective at throwing 
every resource we had at certain problems. Let's hope the national 
security law unit will stand behind their decisions then, especially 
since the biggest threat to us now, Osama bin Laden, is getting the 
most protection.
  I draw this analogy because the same principle applies to the FISA 
modernization, and that is that if we fail to pass this act, someday 
someone will die.

                              {time}  2115

  The biggest threat to us is Osama bin Laden and al Qaeda; and they 
are, unfortunately, now getting great protections. They are getting 
constitutional protections that they don't deserve. We are required to 
go to this FISA Court any time we want to listen to overseas 
intelligence. Foreign communications from a foreign terrorist to a 
foreign terrorist, we are required to go to a court in the United 
States with a showing of probable cause, giving a terrorist 
constitutional protections they do not deserve and putting not only 
Americans in the United States at great risk, but the war fighter 
abroad at great risk.
  There is a great example last year. Three American soldiers were 
kidnapped. Because of the FISA restrictions, we had to get lawyered up, 
go to the FISA Court, apply for a warrant, and show probable cause for 
an emergency FISA warrant. Many hours expired. In the meantime, one of 
those soldiers was killed, and two we haven't heard from since. This is 
a tragic outcome. Again, this is putting Americans at great risk.
  We talk a lot in the 9/11 Commission about connecting the dots. And 
the fact of the matter is, if we can't gather and collect those dots, 
there is no way we can connect the dots. And the gentlelady from New 
Mexico has stated so eloquently so many times that very point. I want 
to yield to her. The gentlewoman from New Mexico (Mrs. Wilson) has been 
the leader in the House on this issue. She was the one who really 
brought this issue to the attention of the Congress, and I believe 
America owes her a great deal of gratitude, so we can fix this 
intelligence gap we currently have in the law and ultimately save 
lives.
  Mrs. WILSON of New Mexico. I thank my colleague from Texas, and I 
also thank him for his leadership on this issue. It has been a 
tremendous help to this body to have people who have actually worked 
and tried to enact and implement the provisions of the Foreign 
Intelligence Surveillance Act to come and be able to explain why it 
doesn't work in the way it is intended to work in a time of terror.
  I think it is important for people to understand, what is the Foreign 
Intelligence Surveillance Act and why do we have it. In the 1950s and 
the 1960s, there were abuses by our intelligence agencies where they 
were wiretapping Americans without warrants. In fact, a friend of mine 
gave me a copy once of a declassified memorandum signed by Robert 
Kennedy and J. Edgar Hoover that authorized the wiretapping of Martin 
Luther King. So there were abuses in the 1950s and 1960s, and the 1978 
Foreign Intelligence Surveillance Act was put in place. The intention 
of it was to say if you want to collect foreign intelligence in the 
United States, and there are reasons to do so, you go to a special 
court called the FISA Court and get a warrant.
  There are folks we suspect of being spies who are here in the United 
States, people working for the Soviet Union, at that time, or Cuba or 
China, and you want to be able to go to a court and get a warrant to 
listen to someone in the United States. And the Foreign Surveillance 
Intelligence Court was set up for that purpose. But it was written in a 
way that was technology specific.
  In 1978, that was the year I graduated from high school. The 
telephone was on the wall in the kitchen, and it still had a dialy-
thing in the middle. It wasn't even a push-button phone at my house. 
The Internet didn't exist. Cell phones were Buck Rogers stuff. So the 
law was written in a technology-specific way that said over-the-air 
communications you can listen to, you don't need a warrant for that. 
And at the time, almost all international calls were over the air. They 
were bounced over a satellite. But to touch a wire in the United 
States, it is presumed to be a local call and you need a warrant.
  Of course today, the situation is reversed. There are over 200 
million cell phones in America, and all of that communication is 
bouncing over the air. But that is not what we need for foreign 
intelligence and to prevent another terrorist attack.
  So, ironically, we now have a law written specific to 1978 technology 
which does not protect local calls and does protect international 
calls. Why, because today almost all international calls are over a 
wire or a fiberoptic cable. And because of the way that global 
telecommunications is now routed, telecommunications now follow the 
path of least resistance, and it is entirely probable that a phone call 
from northern Spain to southern Spain may transit the United States 
because that might be the path of least resistance. Likewise, a call 
from Afghanistan to Pakistan or a call from the Horn of Africa to Saudi 
Arabia may well transit the United States. But in order to listen to 
that communication, if you touch a wire in the United States, our 
courts were saying you have to have a warrant.
  So we now have the situation that was building up last year where we 
had intelligence agencies trying to develop statements of probable 
cause to get a warrant to touch a wire in the United States to listen 
to foreigners in foreign countries principally for the issue of 
preventing terrorism because terrorists use commercial communications. 
And so we had this huge backlog of requests. And it is worse than just 
the time it takes to develop a case for probable cause or to go to the 
courts and the time it takes our experts to be able to take time away 
from actually listening to terrorists to explain to other lawyers and 
judges why they believe someone is affiliated with a terrorist group. 
Sometimes you can't meet that high standard of probable cause.
  Think about this for a second. If we are trying to get a warrant on 
someone here in the United States because we believe they are involved 
with organized crime, you have all of law enforcement to go out and 
look at what they are doing and talk to their neighbors and so on. If 
you have someone who is a suspected terrorist living in the Horn of 
Africa, you can't send the FBI out to talk to their neighbors. 
Sometimes the probable cause standard is too high to meet; and as a 
result, by the middle of last year, we had lost two-thirds of our 
intelligence collection on terrorism. The law had to be changed.
  In the first week of August we changed it with the Protect America 
Act. Eighteen days ago that act expired. Now, to their credit, they 
worked through the backlog in that 6 months and they were able to get 
collections started on that whole backlog of intelligence collection 
related to terrorism. Those won't expire for a year. But here's the 
problem. New tips come in every day.

[[Page 3313]]

  I sometimes go out and visit our intelligence agencies in my role as 
the ranking member of the Technical and Tactical Intelligence 
Subcommittee. Sometimes the director of that particular agency will 
say, Congresswoman, I know you are here to get a briefing on such and 
such a program, but I want you to know the threats we are following 
today. This is who we are looking for today. This is the tip we got 
yesterday that we are trying to track down. We have 12 terrorists who 
transited Madrid who just finished training in Pakistan. We are trying 
to figure out where they are going. We think we know the throw-away 
cell phone numbers that they picked up in the rail station in Bonn. We 
need to listen to them to figure out their plans, capabilities, and 
intentions. Are they going to kill Americans tomorrow?
  That's why this is so important. We have to match the terrorists 
stride for stride, and we can't afford to have delays in intelligence 
collection when we are trying to prevent another terrorist attack.
  Mr. McCAUL of Texas. Mr. Speaker, as so eloquently stated by the 
gentlelady, this is about saving American lives, first and foremost. 
That is the issue at stake here. And it is also about protecting our 
war fighters so we don't have to go through a court in the United 
States to get a warrant to hear what al Qaeda is saying overseas about 
the threats to our military.
  Mrs. WILSON of New Mexico. If the gentleman would yield for a 
question, is it true that if we have soldiers in a war zone, whether it 
is Iraq or Afghanistan, if we have soldiers in a war zone, that they 
may actually be authorized to shoot an insurgent, but they have to go 
back to talk to lawyers in Washington in order to listen to them? Is 
that true?
  Mr. McCAUL of Texas. That is the absurd result of us failing to pass 
the Protect America Act in this body. It is putting our soldiers at 
grave risk.
  These constitutional protections, to extend them to foreign 
terrorists, the FISA when it was enacted was not enacted to give 
foreign terrorists constitutional protections. It was enacted, if you 
are an agent of a foreign power in the United States, to give some 
protection.
  I have quoted before Admiral Bobby Inman who is one of the principal 
architects of the FISA statute. Again, it was designed to, when we want 
to monitor an agent of a foreign power in the United States, go to a 
special court and get a warrant. It was not designed to apply to 
foreign terrorists overseas talking to terrorists overseas. And these 
constitutional protections that I suppose our friends on the other side 
of the aisle would like to extend to the terrorists turns the statute 
on its head.
  What Admiral Inman says is to apply FISA to ``monitoring foreign 
communications of suspected terrorists operating overseas such as Osama 
bin Laden and other key al Qaeda leaders turns the original intent of 
FISA on its head.'' This is the man who was principally responsible for 
writing the statute.
  He says, contrary to some of the rhetoric coming from the Democrats, 
it is the members of al Qaeda, not American citizens, as our colleagues 
will say, it is al Qaeda who is the target of these intelligence-
gathering activities.
  I think the majority of the American people support the idea that we 
should be able to hear what al Qaeda is saying overseas without getting 
lawyered up and going to a court to get a warrant. We know this agenda 
is driven by many on their side of the aisle, the special interests, 
the ACLU, the trial lawyers, and it is such a dangerous policy.
  Mrs. WILSON of New Mexico. If the gentleman would yield for a 
question, is it true that under the Protect America Act, in the Senate 
bill, the bipartisan Senate bill that we should vote here on this floor 
on as soon as possible, is it true that it is still against the law to 
listen to an American in the United States? Do you still need a warrant 
to listen?
  Mr. McCAUL of Texas. You still need a warrant because the fourth 
amendment of the Constitution applies to persons in the United States. 
But the fourth amendment of the Constitution does not apply to foreign 
terrorists overseas not in the United States.
  That is the sort of root of this problem is that we are applying 
constitutional protections to overseas terrorists. Now how absurd is 
that?
  I think if the American people really knew what was going on up here 
and really knew what this debate was all about, and I do think that 
they are rising by the day. We are getting letters and phone calls by 
the day, and I believe they are not going to stand for this kind of 
nonsense that puts the American people and the war fighter at risk.
  Mrs. WILSON of New Mexico. If the gentleman would yield, there are 
some fallacies about the Foreign Intelligence Surveillance Act that I 
think we need to put to rest.
  One is there is an emergency provision, you can just listen to this 
stuff and go to the court 72 hours from now. You have an emergency 
provision. It is true there is an emergency provision, but you have to 
develop the whole case for probable cause and present it to the 
Attorney General who has to stand in the shoes of the judge. So you 
have to get all of the work done; you just don't have the final signoff 
for a judge. And the time problem occurs before you get to that point. 
It is to develop the whole case for probable cause.
  I have seen one of these packets. It is sometimes close to 2 inches 
thick of paper that explains how you meet all of the requirements of 
the act. When it really matters, when we had three soldiers who were 
kidnapped in Iraq, it took over 24 hours to get an emergency warrant.
  I don't know whether that would have saved our soldiers or not. We 
thought we had a tip on who it was that had kidnapped them. I don't 
know if it would have been fast enough even if we would have been able 
to turn it on immediately. But I know if they were my kids, a 24-hour 
delay is not good enough, and we should expect more from our 
Government.
  Mr. McCAUL of Texas. Reclaiming my time, I would like to add to that, 
having worked on FISA applications, as the gentlelady has seen, it is a 
very cumbersome, paperwork-intensive process to establish probable 
cause and to get a court-ordered warrant. In many cases, it took us 6 
to 9 months to get these warrants.
  Now, it has been a little streamlined since 9/11, but it is still a 
very, very cumbersome process. And again, the statute was never 
intended to apply to this type of situation. That is why we need to fix 
this now.
  Again, the majority leader, Steny Hoyer, says there is no urgency. 
There is no urgency. Tell al Qaeda that.
  Chairman Silvestre Reyes, things will be just fine. Tell al Qaeda 
that. They must be celebrating. When they look at what we are doing 
with this statute, they must be saying to themselves, How naive. We are 
playing right into their hands, and this needs to stop.
  I yield now to the gentleman from Georgia (Mr. Gingrey).

                              {time}  2130

  Mr. GINGREY. Well, I thank my colleague for yielding. I thank all of 
my colleagues for bringing this important issue to the floor tonight to 
make sure that each and every Member on both sides of the aisle has a 
good understanding of this issue. And anybody who might be listening or 
tuned in, but mainly for our colleagues here to understand.
  The gentlewoman from New Mexico clearly understands the issue. The 
gentleman from Texas, having worked in the Justice Department, clearly 
understands the issue. Our colleague from Pennsylvania (Mr. Dent) who 
was here last week with us, I know that he clearly understands.
  But it can be confusing. And you know, you listen to this, and I 
think sometimes eyes glass over pretty quickly when you get into the 
weeds of it.
  But I think the bottom line is what my colleagues have already said. 
This law originally passed for the reasons Representative Wilson 
outlined back in the late 1970s. And it was very much based on the 
technology of the time.
  And here we are in 2008, and I don't even have a hard line at my 
apartment

[[Page 3314]]

here in Washington. We have a cell phone. And we have a cell phone that 
has a yearly contract. But, of course, the bad guys, what they do, in 
regard to cell phone technology, is they buy these throwaway cell 
phones and these burn cards and it's very difficult to track them.
  So in the modernization of FISA in the Protect America Act, and 
indeed in the PATRIOT Act, we tried to bring that law into the 21st 
century. And I'll tell you this; I trust the three Michaels on this. I 
trust the Attorney General, Michael Mukasey; I trust Michael McConnell, 
the Director of National Intelligence. I trust Michael Hayden, the 
Director of the CIA. And I think they would tell us what they are 
telling us no matter who was in the White House, no matter who the 
Commander in Chief was. This is not political. They're basically saying 
to the Congress, we need these tools. We need these new tools. We need 
to grant immunity to the telecommunications companies so they can 
provide phone records to us, so that our intelligence experts can look 
at this data, if you want to call it data mining. I don't know exactly 
how it's done. But you have to have that ability.
  And indeed, the telecommunications companies in this country are 
required by Federal law under the penalty of both civil and criminal if 
they don't provide this data. So they're darned if they do and they're 
darned if they don't. And the Democrats seem to want to insist that 
this liability persist. I don't know. Maybe it's a sop to the trial 
lawyers. But it's absolutely essential that we pass this bill.
  And as my colleagues pointed out, here we are 18 days since the FISA 
law expired. I heard Mr. Reyes say on television this weekend on one of 
the Sunday morning TV shows, well, you know, we've talked to the 
telecommunications companies. He, of course, I'm referring to the 
gentleman from Texas, who is the chairman of the Select House Committee 
on Intelligence basically saying it's time, now that we understand, he 
understands the need that let's go ahead and pass this law.
  And here we are this week and what happens? You know, this is the 
18th day. It just goes on and on and on.
  So clearly, I think when you strike right to the bottom line, it's 
exactly what my colleagues have said. You don't have to understand it 
any more than that. We need this renewal. We need this modern 
technology of this law to continue to protect our citizens.
  I'm honored to be here with my colleagues and to share my thoughts, 
although I don't have the depth of knowledge that they do. I don't need 
to have that. I just have a little faith in what my colleagues are 
telling me and the need to protect our citizens.
  So with that I will yield back to the gentleman from Texas, and be 
glad to be with my colleagues for the rest of the hour and continue to 
dialogue with them.
  Mr. McCAUL of Texas. I thank the gentleman for his comments. And 
reclaiming my time, there is an urgency here. We need to act in real 
time with real time intelligence. We can't afford to wait 6 to 9 months 
for a FISA Court to issue a warrant to a foreign terrorist overseas who 
has no constitutional protections.
  Let's look at what the Director of National Intelligence said about 
this issue just recently since the expiration of the Protect America 
Act. He says, ``Our experience in the past few days since the 
expiration of the act demonstrates that these concerns are neither 
speculative nor theoretical. Allowing the act to expire without passing 
the bipartisan Senate bill has had real and negative consequences for 
our national security. Indeed, this has led directly to a degraded 
intelligence capability.''
  I don't know of any American who can read these words from our 
Director of National Intelligence, the man who heads up our 
intelligence communities, the man who served under both Democrats and 
Republican, and not have a chill run up your spine when you read this 
quote. The threat, the risk, the grave risk that the majority is 
putting this country in by allowing this act to expire. There is an 
urgency and we need to get it passed.
  With that I am going to yield to the gentleman from Pennsylvania (Mr. 
Dent).
  Mr. DENT. I would like to thank the gentleman from Texas (Mr. McCaul) 
and the gentlelady from New Mexico, Congresswoman Wilson, for their 
leadership on this critical issue. I'm also pleased to be joined by my 
colleague from Georgia (Mr. Gingrey).
  But after looking at that graphic, I think all of us should take 
note. It was not only Attorney General Mukasey and National 
Intelligence Director McConnell who have talked about the degradation 
of our intelligence and the intelligence product. But it's also the 
chairman of the Senate Intelligence Committee, a Democrat, Jay 
Rockefeller, who also talked about how our intelligence capacity has 
been degraded because of the failure to enact the Protect America Act. 
He said, and I quote, ``What people have to understand around here,'' 
and that's the Senate, ``is the quality of the intelligence we are 
going to be receiving is going to be degraded. It is going to be 
degraded. It is already going to be degraded as telecommunications 
companies lose interest.''
  He said three times, this capacity will be degraded. And I do want to 
applaud the gentleman from Texas for bringing up that e-mail that was 
cited in the 9/11 Commission report from the FBI agent who was so 
frustrated in August of 2001 about the failure of our law enforcement 
intelligence officers being able to collaborate effectively because of 
the wall that existed pre-PATRIOT Act. And he talked about that 
frustration. And he wanted to make sure those barriers were removed. 
And he also talked about how so many protections were being provided to 
Osama Bin Laden and al Qaeda at the expense of the security of the 
American people.
  When we came to this Congress, the 110th Congress, when it first 
convened, we were told by the new leadership under Speaker Pelosi that 
fulfilling the recommendations of the 9/11 Commission report was a top 
priority. Well, it's time to equate those words with action. It's 
absolutely essential that we do so.
  And many of our friends on the other side of the aisle, and this 
shouldn't be a partisan issue because we have bipartisan support for 
this bill. We have more than a two-thirds majority in the Senate, and 
there are over 20 members of the Democratic Caucus who have said that 
they're going to vote for this bill. It shouldn't be a partisan issue. 
We all know that.
  And they've often talked about that we should be allowing our law 
enforcement officials to deal with these terrorists more effectively 
and that we shouldn't be using our military as much. That is what they 
say.
  I have a letter here from the Fraternal Order of Police asking us to 
pass this law. We need to give law enforcement the tools they need to 
do their job. We can't simply say on the one hand we shouldn't be using 
the military but we should be using law enforcement, and then tie the 
hands of those very law enforcement officials we need to help us.
  Mr. Speaker I will be happy to submit this letter for the Record so 
that people can see what the Pennsylvania Fraternal Order of Police 
police have said or, actually it's the National Fraternal Order of 
Police, what they have said, why we need to enact the Protect America 
act.

                                                      Grand Lodge,


                                    Fraternal Order of Police,

                                                 December 4, 2007.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate,
     Washington. DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     Washington, DC.
       Dear Senators Reid and McConnell: I am writing to you on 
     behalf of the members of the Fraternal Order of Police to 
     advise you of our position as the Senate prepares to consider 
     legislation amending the Foreign Intelligence Surveillance 
     Act.
       The FOP does support the inclusion of language that would 
     adequately protect telecommunications companies which 
     cooperated with the Federal government and law enforcement 
     investigators from any liability as a result of that 
     cooperation. It is important that such a provision strike the 
     right balance between the need to investigate and

[[Page 3315]]

     gather intelligence about our nation's enemies--those 
     actively plotting to attack and kill our fellow citizens--and 
     the genuine expectation of privacy of the customers of these 
     firms. It is important to emphasize that these records were 
     voluntarily turned over because these companies were trying 
     to assist the Federal government and law enforcement protect 
     the United States and investigate terrorists, and we do not 
     believe they should be punished for providing this 
     assistance. In the view of the FOP, this is no different from 
     a citizen helping to protect their streets by participating 
     in a Neighborhood Watch program and reporting suspicious 
     activity to the police.
       The attacks on the United States in 2001 were a turning 
     point in our nation's history and, like any turning point, it 
     demands that we change and adapt without yielding our 
     essential liberties or compromising our American values. One 
     of these values is that of compromise, of working together to 
     find common ground and solving problems. The defense of the 
     United States against our terrorist enemies is not the sole 
     province of any entity. If we are to be victorious in this 
     struggle, we must work together. I am proud that law 
     enforcement agencies at every level of government, Federal, 
     State, and local, have changed the way they work so as to 
     foster greater cooperation in the war on terror. I am pleased 
     that our nation's corporate citizens worked with law 
     enforcement and Federal investigators in the wake of 
     September 11th. And now I implore our executive and 
     legislative branch to put aside political considerations, to 
     seek the common ground and to do the right thing those who 
     acted in the best interests of their nation and its citizens.
       Law enforcement officers must make decisions every day 
     weighing the safety of the public against the individual's 
     expectations of privacy--occasionally these decisions have to 
     be made in seconds--because a law enforcement officer may not 
     have the luxury of having months to deliberate the matter. It 
     is time for all parties--the Administration, Congress and 
     interest groups from both sides of this issue--to stop the 
     hyperbole and work together to reach a solution that will 
     protect those companies that came to the aid of their country 
     in our war against terrorism.
       I urge both of you, as leaders of your respective parties, 
     to bring the compromise version of this legislation to the 
     floor and work together to see it pass. I thank you in 
     advance for your thoughtful consideration of the views of the 
     more than 325,000 members of the Fraternal Order of Police. 
     If I can be of any additional assistance on this or any other 
     matter, please do not hesitate to contact me or Executive 
     Director Jim Pasco in my Washington office.
           Sincerely,
                                                 Chuck Canterbury,
                                               National President.

  Moreover, my own Attorney General from the Commonwealth of 
Pennsylvania, Tom Corbett, visited me today. He's down here with the 
Attorneys General. He also talked about the need to enact the Protect 
America Act. And it is absolutely essential that we do so.
  People are often frustrated by what they consider the mindless 
partisanship, the inability of people to get things done in Washington. 
That's why they're upset with Washington. They believe that Washington 
is broken. They're angry because Congress just fails to get commonsense 
legislation accomplished. And I think they want us to put the national 
interest ahead of special interests.
  I think great points have been made here tonight about why we should 
pass this law, and I think we have to recognize what's holding this up. 
There are people in this body who are more interested in protecting the 
concerns of the most litigious among us in our society at the expense 
of the security of the American people. We all know a bipartisan accord 
has been reached on this FISA Act, on the Protect America Act. There 
really should be no more excuses. It's time to take yes for an answer. 
It's time to get the job done. I look forward to working with all of 
you to make sure we accomplish this before our intelligence is degraded 
further than it is today.
  With that I would yield back to my friend from Texas.
  Mr. McCAUL of Texas. I thank the gentleman for his comments. 
Reclaiming my time, the gentleman is absolutely correct. This is a 
bipartisan piece of legislation. The Senate passed it overwhelmingly in 
a bipartisan way. In fact, the Chairman of the Intelligence Committee, 
Senator Rockefeller, a Democrat, said this is the right way to go in 
terms of security of the Nation.
  The gentlelady serves on the Intelligence Committee. We serve on the 
Homeland Security Committee, Mr. Dent and I. When you talk about the 
security of the Nation, you've got to leave your partisan politics and 
your special interests behind because protecting the American people 
deserves better than that. It doesn't deserve the partisan rhetoric.
  Twenty-five attorneys general signed a letter, Democrat and 
Republican, please pass this act. So I do believe the time is now.
  And the sad thing is, the most tragic thing is, we know good and well 
if this was brought to the floor today or tomorrow, that it would pass 
overwhelmingly. And yet the American people are denied that opportunity 
to vote on this bill, through their representatives, because special 
interests are holding this up.
  Again, I point to the ACLU and the trial lawyers who want to take a 
shot at the companies, the private sector, who have carried out their 
patriotic duties, when the government asked them in a time of war to do 
their duty, to help the United States Government listen to terrorists 
overseas and somehow we should subject them to liability. I think 
that's crazy. If the government did something wrong then, of course, 
the government should be held accountable.
  When companies are acting on behalf and certified on behalf of the 
Attorney General to do this, essentially a mandate to do it, they 
should not be held liable for those actions. So I think that is the 
real issue here, what's holding up this bill that would protect 
Americans.
  I yield to the gentlelady from New Mexico.
  Mrs. WILSON of New Mexico. I thank my colleague.
  In fact, one of the reasons that attorney generals and the Fraternal 
Order of Police are so strongly in support of this legislation is that 
they worry that what's happening to our telecommunication companies 
because of their cooperation with the government on terrorism will also 
extend and poison the relationship between law enforcement and our 
telephone companies.
  There are at least 15 States where we have over 25 lawsuits, some of 
them against telephone companies that weren't even involved, and those 
who are involved can't defend themselves in civil court without 
revealing to the terrorists how we're collecting intelligence on them 
and compromising our national security. I'm convinced, having looked at 
this, that they actually have immunity. They just can't prove it. And 
it is up to this Congress to clarify that companies that cooperated 
with the U.S. Government in helping us prevent terrorism through 
electronic surveillance are immune from civil liability lawsuits. I 
think the law is clear. It's up to the Congress to step up and reaffirm 
it quite clearly.
  My colleague from Georgia says, and he's right, that this is kind of 
a difficult-to-understand technical subject in some respects. But there 
are some things that aren't difficult to understand. I mean, we all 
remember where we were the morning of 9/11. We remember who we were 
with, what we had for breakfast, what we were wearing, who we called 
first to check to see if they were okay.
  Very few Americans remember where they were in August of 2006 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. One of the terrorists that was involved intended to 
bring his wife and his 6-month-old baby with him so that they'd all die 
together. Comprehend that evil for a moment. You're willing to kill 
your own 6-month-old child in order to blow up an airliner. If that had 
happened, more people would have died that day than died on the morning 
of 
9/11. But you don't remember it because it didn't happen. And it didn't 
happen because of cooperation between the British, American and 
Pakistani intelligence services. Forty-eight hours. They were within 48 
hours.
  How much time should we wait while lawyers gather in Washington to 
develop cases for probable cause to get a warrant on a foreigner in a 
foreign country?
  I yield back to my colleague from Texas.

[[Page 3316]]



                              {time}  2145

  Mr. McCAUL of Texas. I thank the gentlelady for her insight, and 
she's absolutely right that this terrorist surveillance program has 
protected Americans from the very scenario that you mentioned.
  We all remember this day. It's etched in our memory forever. I will 
never forget this day, and every patriotic American will never forget 
what they did to us that day. But yet, every day this Act, since it has 
expired, with every day there's greater risk to this happening again.
  There's a reason why this hasn't happened again. It's because we have 
been able to thwart and to stop plots against the United States to kill 
us. That's what this program does. That's what the Protect America Act 
did until the Democrats allowed it to expire almost 3 weeks ago.
  Alluding back to Ramzi Yousef, very interestingly, and I know the FBI 
agents when they arrested him, when they busted down his door to talk 
about what the gentlelady talked about in terms of a sinister evilness 
about the terrorist, to get in the mind of the terrorist, what they 
found were about a dozen baby dolls, and those baby dolls were stuffed 
with chemical explosives. They were going to carry those on the 
airplanes and blow them up.
  Now, chemical weapons we saw with the London arrest. They always go 
back to their old tricks. They attempted to sneak chemical explosives 
onto these airplanes. Fortunately, we had good intelligence. Without 
good intelligence, people die. Without good intelligence, we cannot 
fight this war on terror. Without good intelligence, we cannot protect 
the American people, and as we stated before, we put the war fighter at 
tremendous risk.
  So, with that, I will yield again to the gentleman from Pennsylvania.
  Mr. DENT. That graphic you just showed from 9/11 in New York vividly 
reminds me of that day, and my cousin was on the 91st floor of the 
north tower. He was one of the lucky ones. He got out. Everybody above 
him was killed, and all 11 people on his floor made it out, and it was 
a harrowing experience which I won't go through here tonight.
  But we should also remember an article that was written by a woman 
named Debra Burlingame. She wrote this editorial in The Wall Street 
Journal a few years ago, and she talked about the fact that there were 
two individuals in this country before 9/11 that FBI agent you referred 
to earlier was concerned about. He was concerned about those 
individuals, and for whatever reason, nobody in the FBI was prepared to 
go to the FISA Court to go on a nationwide manhunt for these two 
individuals. Didn't happen until the afternoon of September 11, 2001.
  And those two individuals that Debra Burlingame wrote about, who we 
were so concerned about, who were operating out of San Diego, who were 
making phone calls to Yemen into a switchboard run by the brother-in-
law of one of those two individuals, bin Laden would call into that 
switchboard himself.
  The point is those two individuals were the ones who crashed the 
plane into the Pentagon, and the pilot of that plane was a man named 
Burlingame, Captain Burlingame, the brother of Debra, and it really 
speaks to the issue that we should be surveiling and monitoring calls 
of people who are not American citizens and who we suspect that are 
engaged in serious terrorist activities.
  We had a sense that those two people were bad actors, but we failed 
to act. We can't let that happen again. Heaven forbid if there's 
another terror attack like that of 9/11 or something worse, and heaven 
forbid if, for whatever reason, we failed in our duty to provide our 
law enforcement officials, our counterterrorism officials the tools 
they needed to connect the dots. And as you so eloquently stated, we 
cannot connect the dots if we can't find the dots. That's precisely the 
point.
  Mr. McCAUL of Texas. I thank the gentleman, again, for his insight.
  Because of the wall back then and because of the intelligence gap, 
people did die, 3,000 Americans. Haven't we learned our lesson? How 
many times do the terrorists have to hit us? We know before September 
11 there were many attacks against American interests, whether it was 
Beirut, the Khobar Towers, the USS Cole, the 1993 World Trade Center, 
they went back to it again. When are we going to learn the lesson?
  The 9/11 Commission came out with its recommendations, and yet I 
don't believe we're heeding the warnings from the 9/11 Commission 
today. When are we going to learn the lesson that we need the dots to 
connect them in the first place?
  And I think it's worth repeating, for those who have just tuned in, 
again the FBI agent's frustration that Mr. Dent has referred to, and I 
can see this. Having worked with the FBI, I can see an agent who is 
pounding his head against the wall because some bureaucratic rule 
prevents him from coordinating with the intelligence side of the house 
and he can't get the intelligence he needs to protect Americans because 
the intelligence community knows that two of these terrorists are in 
the United States but they can't tell the FBI about it. It is an absurd 
result, and he says, very, very frustrating, sending a letter to FBI 
headquarters, which could be a career-breaking act to do, very 
dangerous thing for an FBI agent to do, but he voices his frustration, 
saying someday someone will die. This is before 9/11. And law or not, 
the public will not understand why we were not more effective at 
throwing every resource we had at certain problems. They don't seem to 
understand the biggest threat to us now is Osama bin Laden.
  That fell on deaf ears, and I'm afraid that this message is now 
falling on deaf ears again. It's certainly falling on deaf ears in this 
House when the majority fails and it's a dereliction of duty not to 
bring this bill that will protect American lives to the floor of this 
House.
  Mrs. WILSON of New Mexico. It's not even the majority. The majority 
of this House, a bipartisan majority of this House, would pass this 
bill tonight if the liberal Democratic leadership would allow a vote. 
That's the thing that's so frustrating to me. This is a bill that 
passed with 68 votes in the Senate. It's pending on the floor of this 
House. The liberal Democratic leadership who, to a person, opposed the 
Protect America Act in August is blocking the will of the majority of 
the House of Representatives that wants to protect this country. 
They're standing in the way of protecting this country and letting the 
majority work its will.
  Why? Because they're concerned about lawsuits against telephone 
companies and the deep pockets of the telecommunications industry, with 
trial lawyers saying, hey, aren't you with us.
  Well, this majority in this House, led by the Republicans in this 
House, know that national security is the priority of the country, not 
protecting the trial lawyers.
  Mr. McCAUL of Texas. I thank the gentlelady, and I couldn't agree 
more.
  If, God forbid, we are hit again while we have this act expiring, 
while we're dark in many parts of the world, while we're losing 
intelligence all over the world, if we could have stopped it when it 
happens here again and the American people wake up and realize who is 
responsible for this, and if American blood is spilled once again, that 
blood will be on the hands of Congress, and I feel very passionately, 
and I yield to the gentleman from Georgia.
  Mr. GINGREY. I thank the gentleman from Texas for yielding.
  It's just like I said earlier about the chairman of the House Select 
Committee on Intelligence, the gentleman from Texas (Mr. Reyes), who I 
have tremendous respect for, and I think on both sides of the aisle, my 
colleagues would agree with me, a good man, a good Member.
  And what he said Sunday morning, this past Sunday morning, was, look, 
we have now had the opportunity to talk with the telecommunication 
companies and understand what it is they need to provide under the law 
and why they did that, why they did it in a patriotic way, and yes, Mr. 
Moderator, we

[[Page 3317]]

are ready to move forward and modernize this bill. And I'm reading his 
lips. I'm listening to what he says, and I believe him and I sincerely 
believe that he wanted this bill to be brought to this floor this week.
  As my colleagues have already said, it would pass overwhelmingly, but 
unfortunately, I can't help but believe that a good man, Mr. Reyes, is 
being trumped by his leadership. And as the gentlewoman from New Mexico 
just said, why? Why would they do that unless, again, it's more concern 
for this special narrow interest group of trial attorneys that want to 
bring more lawsuits against telecommunications companies who were just 
obeying the law that they were required to obey.
  I just want to point out, too, that as my colleagues have said, the 
9/11 Commission, which was insisted upon by the 9/11 families, led by a 
distinguished Democrat, Lee Hamilton, former Republican Governor of New 
Jersey, Governor Kean, they clearly understood that we had a stovepipe 
system pre-9/11 in regard to intelligence gathering, as my colleague 
from Texas said, not really finding the dots, much less connecting 
them.
  And it was a clear outline, a clear blueprint that that commission 
asked us to do. That, indeed, is what ultimately led to creation of a 
directorship of national intelligence so that those 16 or 18 
communities of intelligence, many of which are within the Department of 
Defense, could talk to one another so that we could win this war. This 
global war on terrorism is not going to be won with air superiority, 
sea superiority, greater weapons systems. It's going to be won with 
greater intelligence, and that's what this is all about. And I yield 
back to my friend from Texas and I thank him for the time.
  Mr. McCAUL of Texas. I thank my colleague, and he points out so 
eloquently how important good and accurate intelligence is.
  Because we had an intelligence gap, September 11 occurred. What we're 
trying to do is to stop that from ever happening again. Without that, 
we fail, and it's the best weapon we have, the first line of defense in 
the war on terror. And yet, for some reason, the majority in the 
Congress are being denied the right to vote on this and pass it and, in 
turn, denying the will of the American people, who we know support it. 
They want us to know what al Qaeda is saying overseas, and yet what 
we're doing is we're extending protection, giving the trial lawyers 
authority and extending constitutional protections to foreign 
terrorists.
  The Constitution does not apply to a terrorist in a foreign country, 
and that is the absurd result that we find ourselves in today. And with 
that, I will yield to Mr. Dent from Pennsylvania.
  Mr. DENT. Mr. Speaker, I'd like to just say that I think the American 
people hear our frustration here tonight. People of all ideological 
stripes in this body support the Protect America Act, and I think the 
people of the United States expect an answer as to why the leadership 
of this body under Speaker Pelosi will not allow this legislation to be 
considered.
  And I believe very respectfully that Speaker Pelosi and the far left 
are driven by an extreme agenda on this critical national security 
issue, and it appears that there are a very small number of people in 
this body, in this country, who don't want to enact these important 
reforms.
  It's time to stop pandering to trial lawyers or to the ACLU or 
moveon.org and get on with the business of this country, and it seems 
that in too many cases there are some people who are misguided, who 
seem to think that the FBI and the CIA and the NSA and other 
intelligence agencies that support this government are a greater threat 
to us than is al Qaeda, led by Osama bin Laden.
  And that is what is so frustrating to me, that our law enforcement 
officials, our counterterrorism officials, our intelligence officials 
want us to get the job done. Intelligence officials are taking out 
personal liability insurance to protect themselves against lawsuits or 
a congressional inquiry, not protect themselves against al Qaeda but to 
protect themselves against people in this town, Washington, DC. And 
again, it's really time for us to get on with the business of this 
Nation.
  The bipartisan compromise that we have all talked about has been 
reached. Many of us try to work in a very bipartisan manner on a number 
of issues. This is one clear case where we've done so, and it's time 
for the leadership to allow us to get the job done, and we call on 
Speaker Pelosi to do just that.
  Mr. McCAUL of Texas. I thank the gentleman, and I have to make the 
analogy that prior to 9/11 it's almost like before Pearl Harbor; we as 
a country were a sleeping giant and alarms went off at various times, 
the flags went up, that the majority of people here in the United 
States really, we didn't understand it. We didn't heed the warning. We 
didn't listen to those alarms before they went off.
  And then, of course, on September 11, the sleeping giant awoke, and 
we wanted to do everything we could possibly do to secure and protect 
this Nation. And I think the most tragic thing that could happen is for 
the sleeping giant to go back to sleep, and I believe that if we fail 
to pass this important national security legislation, that's exactly 
what's going to happen. And I yield to the gentlelady from New Mexico.
  Mrs. WILSON of New Mexico. I thank the gentleman for yielding.
  I think there are two points that haven't been made tonight that I do 
think are worth making concerning the Protect America Act, which we 
hope to make permanent in the bill that's come over here from the 
Senate to fix the Foreign Intelligence Surveillance Act.

                              {time}  2200

  But one of the points that hasn't been made is that the Senate bill 
that has passed, that's pending on this floor, actually has stronger 
civil liberties protections for Americans than in the original 1978 
law. In fact, Admiral McConnell and Attorney General Mukasey said in a 
letter on the 22nd of February, ``We note that the privacy protections 
for Americans in the Senate bill exceed the protections contained in 
both the Protect America Act and the House bill.''
  So, in fact, one of the things that has changed under this new piece 
of Senate legislation is that if you are an American, wherever you are 
in the world, if you're known to be an American, you have the 
protections of the American Constitution. That's not the case under the 
1978 FISA law. So, there is actually more civil liberties protections 
for Americans on the bill that is on the floor of the House than there 
is under existing statute.
  And the second thing that I think is worth pointing out is that after 
9/11 the President turned to his advisers and everyone in all the 
intelligence agencies and said, you know, what tools do we have? How 
can we prevent another terrorist attack? How can we find out what their 
plans and capabilities and intentions are? The fact is that the 
terrorist threat is much different than the threat that we faced in the 
height of the Cold War. I was an Air Force officer in Europe during the 
Cold War. And the Soviets were a very convenient enemy from an 
intelligence point of view. They had a very big footprint. We knew 
where they were. We knew what they had. They had exercises the same 
time every year out of the same barracks using the same radio 
frequencies. They would have been very difficult to defeat, but we knew 
where they were.
  With the terrorist threat, the problem is completely reversed. If we 
can find them, we can stop them. The problem is finding them. And, in 
general, they are using commercial communications. So, instead of being 
one ugly monster in the forest where you know where they are like the 
Soviets were, it's more like a ``Where's Waldo'' problem. Can you find 
the person in the clutter of everything else? That puts the premium on 
good intelligence.
  And particularly, in the case of terrorism, electronic surveillance 
has been one of our most important tools because they are hiding and 
using commercial communications. That has been one of our strongest 
tools in preventing terrorist attacks for the last 6 years. And I must 
say that I believe

[[Page 3318]]

that the greatest accomplishment of the last 6\1/2\ years has been what 
has not happened. We have not had another terrorist attack on our soil 
since the morning of 9/11. And they have tried. It has been good 
intelligence that has kept this country safe. And for the last 18 days, 
we have been building another intelligence gap, and this body must act 
to close it.
  Mr. McCAUL of Texas. I thank the gentlelady for her eloquence, as 
always.
  I would like to just add that, certainly during the Cold War at 
least, the principle of mutually shared destruction applied; we valued 
our lives and so did the Soviets. In this war against terrorism, in the 
day of suicide bombers, we can't say that. So real-time intelligence is 
absolutely critical to protecting the Nation.
  I want to state again, from the DNI, the Director of National 
Intelligence, he says, ``Expiration of this act will result in a 
degradation of critical tools necessary to carry out our national 
security mission. And without these authorities, there is significant 
doubt surrounding the future aspects of our operations.'' Again, that 
is a warning to the United States Congress that if you don't do your 
job, I can't do my job. Do your job.
  With that, I yield to the gentleman from Pennsylvania.
  Mr. DENT. Mr. Speaker, I want to thank the gentleman from Texas and 
the gentlelady from New Mexico and the gentleman from Georgia for 
engaging in this colloquy tonight.
  I think just about everything has been said. We have a job to do. The 
American people expect us to get it done. We've heard from the attorney 
generals, we've heard from the U.S. Attorney General, Michael Mukasey. 
We've heard from the Director of National Intelligence, Michael 
McConnell. We have heard from everyone. And the fact that this 
intelligence product is being degraded should be alarming to every 
single American. The fact that we're debating this this evening, 
knowing that we may not be getting vital intelligence or information I 
think should be cause for alarm.
  There are going to be those who say that we're doing this fear-
mongering. That is absolute nonsense. We're simply stating facts. And 
the facts are that our intelligence personnel today don't have the 
tools that they had just a few weeks ago to deal with the threats that 
we face as a Nation.
  With that, I want to thank you again for your leadership. As a member 
of the Homeland Security Committee, you and I are deeply engaged in 
these issues, along with Mrs. Wilson, who has been a great leader on 
the House Permanent Select Committee on Intelligence. Again, we need to 
keep pounding this point home. I am prepared to come to the floor of 
the House every single night until this law is enacted.
  With that, I yield back to the gentleman from Texas.
  Mr. McCAUL of Texas. Thank you, Mr. Dent, for your leadership as 
well. I see we just have a few minutes left.
  I yield 2 minutes to the gentlelady from New Mexico.
  Mrs. WILSON of New Mexico. I want to thank the gentleman from Texas, 
and I won't take the 2 minutes, but I wanted to thank him for his 
leadership and persistence. This is going to get fixed because we will 
not rest until it's fixed, and it is critical to the country that it be 
fixed.
  It is now up to the liberal Democrat leadership to listen to the will 
of this body and pass the Senate bill that will close the intelligence 
gap.
  I yield back to my colleague.
  Mr. McCAUL of Texas. I thank the gentlelady.
  I would like to close with a quote. Why is this debate so important? 
I think it's important to understand the threat and to understand who 
the enemy really is. Who is the enemy? Let's get inside the mind of the 
enemy. And our enemy says, ``The confrontation that we are calling for 
with the apostate regimes does not know Socratic debates, Platonic 
ideals, nor Aristotle diplomacy. But it knows the dialogue of bullets, 
the ideals of assassination, bombing and destruction, and the diplomacy 
of the cannon and machine gun. Islamic governments have never and will 
never be established through peaceful solutions and cooperative 
councils. They are established as they always have been, by pen and 
gun, by word and bullet, and by tongue and teeth.''
  The words I just read to you are the preface of the al Qaeda training 
manual. That is how it begins. That's in their words, not mine. That is 
the enemy. That is the threat. That is why it's so important we pass 
the Protect America Act on the House floor, and pass it now.

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