[Congressional Record (Bound Edition), Volume 154 (2008), Part 3]
[House]
[Pages 4358-4414]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2008

  Mr. ARCURI. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 1041 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 1041

       Resolved, That upon adoption of this resolution it shall be 
     in order to take from the Speaker's table the bill (H.R. 
     3773) to amend the Foreign Intelligence Surveillance Act of 
     1978 to establish a procedure for authorizing certain 
     acquisitions of foreign intelligence, and for other purposes, 
     with the Senate amendment thereto, and to consider in the 
     House, without intervention of any point of order except 
     those arising under clause 10 of rule XXI, a motion offered 
     by the chairman of the Committee on the Judiciary or his 
     designee that the House concur in the Senate amendment with 
     the amendment printed in the report of the Committee on Rules 
     accompanying this resolution. The Senate amendment and the 
     motion shall be considered as read. The motion shall be 
     debatable for one hour, with 40 minutes equally divided and 
     controlled by the chairman and ranking minority member of the 
     Committee on the Judiciary and 20 minutes equally divided and 
     controlled by the chairman and ranking minority member of the 
     Permanent Select Committee on Intelligence. The previous 
     question shall be considered as ordered on the motion to its 
     adoption without intervening motion.
       Sec. 2.  During consideration of the motion to concur 
     pursuant to this resolution, notwithstanding the operation of 
     the previous question, the Chair may postpone further 
     consideration of the motion to such time as may be designated 
     by the Speaker.

  The SPEAKER pro tempore (Mr. Pastor). The gentleman from New York is 
recognized for 1 hour.
  Mr. ARCURI. Mr. Speaker, for purposes of debate only, I yield the 
customary 30 minutes to the gentleman from Washington (Mr. Hastings). 
All time yielded during consideration of the rule is for purpose of 
debate only.


                             General Leave

  Mr. ARCURI. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days within which to revise and extend their remarks 
and insert extraneous material into the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. ARCURI. Mr. Speaker, I yield myself such time as I may consum.
  Mr. Speaker, House Resolution 1041 provides for consideration of the 
Senate amendment to H.R. 3773, the FISA Amendments Act of 2008. The 
rule makes in order a motion offered by the chairman of the Judiciary 
Committee to concur in the Senate amendment with the amendment printed 
in the Rules Committee report on this resolution.
  Mr. Speaker, we have come a long way on the crucial issues of 
intelligence-gathering. I commend Chairmen Conyers and Reyes for their 
diligence in providing much-needed attention in evaluation of FISA, 
while ensuring that we provide our Nation's intelligence community with 
the necessary tools and resources to prevent a future terrorist attack 
on our Nation.
  Over the last few weeks, my office phone lines have been burning up 
with calls from constituents regarding FISA and the need for Congress 
to take action. Unfortunately, the calls were prompted by a far-
reaching misinformation campaign aimed to scare the public into 
believing that the House majority is in some way prohibiting our 
Nation's intelligence community from monitoring the terrorists. Nothing 
could be further from the truth. Not only are these claims false, they 
are unconscionable.
  I don't believe any Member of this institution, Republican or 
Democrat, wants to shackle our Nation's intelligence community from 
preventing another terrorist attack. Frankly, I am getting alarmed by 
the claims by some of my colleagues. For the last couple of weeks, we 
have heard only one message from the other side of the aisle: take up 
the Senate bill because it has the support of the President. I have no 
interest in being a rubber stamp for this administration, nor of any 
elected body, even the Senate. That is not why I was sent to Congress. 
I certainly mean no disrespect to the Senate, but my constituents sent 
me to Congress to use my judgment and conscience to help govern.
  The chairman of the Judiciary Committee said it best earlier in the 
week during our Rules Committee hearing when he said we are not an 
appendage of the Senate. I couldn't agree with Mr. Conyers more. It is 
our responsibility to the American people to exercise our legislative 
duty. Furthermore, with an issue like FISA and intelligence-gathering, 
I am confident that the American people would expect the House to 
exercise that duty to the fullest extent possible.
  We are a bicameral form of government. The changes we are proposing 
to the Senate bill today represent a powerful step forward in the 
legislative process. The administration has made it overwhelmingly 
clear that they need to use electronic surveillance to track and 
identify terrorist targets. And despite the misinformation campaign and 
the rhetoric, the proposal we will vote on today makes it easier for 
our Nation's intelligence community to wiretap suspected terrorists by 
explicitly

[[Page 4359]]

not requiring a court order to wiretap targets believed to be outside 
the United States. In addition, the proposal provides for surveillance 
of terrorists and other targets overseas who may be communicating with 
Americans.
  And we are all well aware of the issue of immunity for telecom 
companies. It seems like that is all we have talked about here for the 
past several months. As a former prosecutor, I can say from experience 
and without hesitation, you never provide immunity to anyone unless you 
are sure whom you are giving the immunity to and why you are giving the 
immunity out.
  One point that has not received enough emphasis over the last few 
weeks is that the telecom companies have immunity under current law. 
However, the problem is that anytime a telecommunication company goes 
to court, this administration steps in and says this is classified 
material and the question is deemed state secret, and therefore you are 
not allowed to talk about it. In that way, the telecom companies are 
not allowed to even defend themselves, but rather have to sit there and 
answer for any charges civilly made against them.
  I, for one, couldn't agree more that if the intelligence community 
goes to a telecom company with adequate authorization and says, We need 
communication records for person X because he or she is believed to be 
a terrorist, the telecom company deserves to be afforded that 
protection. Unfortunately, we have absolutely no idea what the 
administration requested and what the telecom companies have provided.
  Our proposal provides a commonsense, balanced approach to address the 
immunity issue. We want to provide the telecom companies with a legal 
way to present their defense in a secure proceeding and in a secure way 
in district court without the administration asserting state secret 
privileges to block those defenses.
  And, again, don't be fooled by the misinformation campaign. We are 
not talking about broadcasting the content of those defenses over the 
public airwaves, rather just the opposite will be done in camera and in 
secret. This would involve ex parte proceedings in camera. That is one-
on-one telecom company and a Federal district court judge behind closed 
doors. That way, the determination of whether or not the classified 
material is, in fact, a state secret is made by a neutral third party 
and not just this administration.
  Finally, our proposal establishes a bipartisan national commission 
with subpoena power to investigate and report to the American people on 
the administration's warrantless surveillance activities and to 
recommend procedures and protections for the future in much the same 
way that the 9/11 Commission did.
  Mr. Speaker, we must bring the misinformation campaign and partisan 
wrangling to an end. There is no question that there are groups and 
individuals out there who seek to do us harm. There is no question that 
my colleagues and I want to give the people who protect us from the 
danger every tool they need to keep fighting terrorism. The proposal we 
will vote on today will, in fact, provide our Nation's intelligence 
community with the resources to prevent future acts of terrorism while 
protecting the freedoms of the citizens under the Constitution. 
Everyone in this body wants the same thing, and that is to protect 
American citizens. This bill does exactly that.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Washington. Mr. Speaker, I yield myself as much time 
as I may consume.
  Mr. Speaker, I want to thank my friend from New York (Mr. Arcuri) for 
yielding me the customary 30 minutes, which I must note, Mr. Speaker, 
is more time than the entire House Intelligence Committee will be 
permitted to debate the legislative proposal covered by this rule. The 
Democrat Rules Committee is allowing just 20 minutes for the members of 
the Select Committee on Intelligence to debate this Democrat FISA 
proposal.
  What is at stake is the safety and security of our Nation to protect 
us against foreign terrorists threats by modernizing the 1970s 
electronic surveillance law. The issue before the House is no less than 
our intelligence community's ability to protect American citizens by 
monitoring foreign terrorists communicating in foreign places. But the 
respective members of the Intelligence Committee are to be given only 
20 minutes to debate this issue.
  It appears that Democrat leaders are not content with their record of 
the most closed rules in the history of the U.S. House of 
Representatives in shutting down every Member from being permitted to 
offer amendments on the House floor. So now they are going so far as to 
restrict the time the House is even permitted to debate bills that they 
are trying to ram through this body.
  Mr. Speaker, since the new Democrat majority took control of the 
House Rules Committee last January a year ago, they have approved rules 
that allow other committees far more time to debate matters of far less 
importance than FISA. For example, H. Res. 214 provided a rule allowing 
the Transportation Committee 1 hour of floor debate on legislation to 
``authorize appropriations for sewer overflow control grants.''
  H. Res. 269 gave the Financial Services Committee 1 hour to debate 
housing assistance for Native Hawaiians.
  H. Res. 327 gave an hour to the Science and Technology Committee to 
discuss scholarships for math and science teachers.
  H. Res. 331 gave the Resources Committee 1 hour of time, not just 20 
minutes, but 1 hour of time to debate restoring the ``prohibition on 
the commercial sale and slaughter of wild free roaming horses and 
burros.''
  Mr. Speaker, I believe my colleagues on the other side of the aisle 
care sincerely about the security of our country and our fellow 
citizens. But I fail to understand how it could be justified to allow 
more House floor time to debate overflowing sewers and the killing of 
wild burros than the members of the Intelligence Committee are allowed 
today to discuss the urgent needs of FISA.
  The answer is that Democrat leaders are working overtime to block the 
House from voting on a bipartisan compromise bill that has passed the 
Senate by a vote of 68-29. The bill passed the Senate over a month ago, 
and on February 12, the Democrat leaders refused to allow the House to 
even vote on that measure.
  Twenty-one Blue Dog Democrats sent a letter to Speaker Pelosi at the 
end of January declaring their support for the Senate FISA bill. But 
there still hasn't been a vote. Mr. Speaker, I submit for the Record 
that letter.

                                Congress of the United States,

                                 Washington, DC, January 28, 2008.
       Dear Madam Speaker: Legislation reforming the Foreign 
     Intelligence Surveillance Act (FISA) is currently being 
     considered by the Senate. Following the Senate's passage of a 
     FISA bill, it will be necessary for the House to quickly 
     consider FISA legislation to get a bill to the President 
     before the Protect America Act expires in February.
       It is our belief that such legislation should include the 
     following provisions:
       Require individualized warrants for surveillance of U.S. 
     citizens living or traveling abroad;
       Clarify that no court order is required to conduct 
     surveillance of foreign-to-foreign communications that are 
     routed through the United States;
       Provide enhanced oversight by Congress of surveillance laws 
     and procedures;
       Compel compliance by private sector partners;
       Review by FISA Court of minimization procedures;
       Targeted immunity for carriers that participated in anti-
     terrorism surveillance programs.
       The Rockefeller-Bond FISA legislation contains satisfactory 
     language addressing all these issues and we would fully 
     support that measure should it reach the House floor without 
     substantial change. We believe these components will ensure a 
     strong national security apparatus that can thwart terrorism 
     across the globe and save American lives here in our country.
       It is also critical that we update the FISA laws in a 
     timely manner. To pass a long-term extension of the Protect 
     America Act, as some may suggest, would leave in place a 
     limited, stopgap measure that does not fully address critical 
     surveillance issues. We have it within our ability to replace 
     the expiring Protect America Act by passing strong, 
     bipartisan FISA modernization legislation

[[Page 4360]]

     that can be signed into law and we should do so--the 
     consequences of not passing such a measure could place our 
     national security at undue risk.
           Sincerely,
         Leonard Boswell, Marion Berry, Mike Ross, Bud Cramer, 
           Heath Shuler, Allen Boyd, Dan Boren, Jim Matheson, 
           Lincoln Davis, Tim Holden, Dennis Moore, Christopher 
           Carney, Earl Pomeroy, Melissa Bean, Joe Baca, John 
           Tanner, Jim Cooper, Brad Ellsworth, Charlie Melancon, 
           Zack Space.

  When the Rules Committee met to discuss this bill on Wednesday, 
several of my Democratic colleagues argued that the House shouldn't 
have to give in to a my-way-or-the-highway or take-it-or-leave-it 
approach when it comes to the bipartisan Senate bill.
  I agree with my colleagues, Mr. Speaker. No Member of this House 
should ever vote for legislation that they can't support. Members have 
the right to vote their conscience. But, Mr. Speaker, simply allowing 
the House to vote on a bipartisan FISA bill doesn't force any Members 
to vote against his or her will. It just gives them an opportunity to 
vote on a bill that has passed the other body overwhelmingly.

                              {time}  1030

  It is the Democrat leaders and a liberal minority amongst that party 
who are telling the rest of the House that it's their way or no way. 
For days and weeks, they've refused the call of the 21 Blue Dog 
Democrats for the House to act in the name of our Nation's security. 
Democrat leaders are standing in the way of letting the House vote and 
work its will because they fear a majority of this body will actually 
approve the Senate bill.
  Mr. Speaker, today, every Member of the House is going to have a 
chance to vote and to allow the bipartisan Senate language to pass this 
House. Let me be very clear what I intend to do when the previous 
question is moved, because this will not be the ordinary motion. I will 
amend just one clause of the rule, that is, section 2, so that the 
section will then read, and I quote: Upon rejection of the motion to 
concur specified in section 1, a motion that the House concur in the 
Senate amendments to H.R. 3773 is hereby adopted.
  What does that mean? What this means is that by voting ``no'' on the 
previous question, the rule will be amended in such a way that 
continues to allow the House to debate and vote on the proposal that's 
offered by the Democrats today. But if the House Democrat proposal 
fails, then the bipartisan Senate FISA bill is then agreed to by the 
House. So we will have the vote on the Democrats' partisan FISA bill 
presented to us today, but if the vote on the Democrat FISA bill fails, 
then the games stop right there and the Senate bill goes to the 
President for his signature. There's no more stalling, Mr. Speaker, no 
more posturing.
  It's time for the House to stand up and vote and get on with the 
business of protecting America.
  With that, Mr. Speaker, I reserve the balance of my time.
  Mr. ARCURI. Mr. Speaker, it just seems to me that this debate is 
becoming more and more political rather than focusing on what we're 
here to do, and that is to ensure that the people of this country have 
absolutely the best FISA bill that they can, a bill that not only 
protects us but ensures that the Constitution is protected as well. 
That's what this FISA bill does. It takes the best of all the things 
that we have been trying to achieve over the past several months and 
incorporates it into a bill, including unshackling the telecom 
companies so that if they have done what has been asked of them and 
what is permitted to do under the law, that they are allowed immunity. 
We certainly don't want to prosecute people who have been trying to 
help our country and keep our country safe. Nonetheless, this puts into 
effect the important factors of ensuring that those things are done.
  With that, Mr. Speaker, I would like to yield 2\1/2\ minutes to the 
gentleman from Pennsylvania (Mr. Sestak).
  Mr. SESTAK. Mr. Speaker, I was assigned to the Pentagon the day 9/11 
happened. It was very obvious, sitting there at dead center, that the 
world had changed. We in the military used to like away games. We liked 
our wars over there. Suddenly we had a home game and things had to 
change.
  A few days later, I was appointed to be head of the Navy's 
antiterrorism unit. Shortly after that, I was on the ground in 
Afghanistan flying in with a fellow from the CIA with a suitcase filled 
with millions of dollars. I wanted the best insurance, the best 
intelligence. But I felt I always had that because I had worked at the 
National Security Council, where in counterproliferation and 
antiterrorism efforts there, I was able to see that whether it had been 
President Reagan, President Clinton, or the first President Bush, FISA 
provided that ability.
  I like this bill. It is very similar to the Senate bill. If someone 
in Saudi Arabia is talking to someone in Germany and it routes to the 
United States, we can listen in without asking questions.
  I remember being in the White House and being frustrated, because if 
somebody was doing proliferation of weapons of mass destruction, we 
couldn't, under FISA, get a warrant for them. This bill fixes that.
  And then I step back in emergencies. This bill fixes it in an 
emergency situation that you don't even have to ask permission; you can 
just do it. And it extends from 3 days of having to come to the court 
till 7 days. And then even if the court takes another 30 days, keep 
listening. Thank you for that.
  But the real differences come down to what I think is important, 
because every day I was out there for 31 years in the military, I 
wasn't just fighting an enemy or trying to deter him; I was fighting 
for an ideal, the ideal of which America is founded upon, the rights of 
civil rights. Therefore, I honestly believe what we have done in the 
telecommunications companies and discussing immunity should be done by 
the proper branch of government, the judicial branch, a court, the FISA 
Court. Then if everything was not awry, then we can say, under the 
provisions of the previous law, they have immunity.
  And then I would like to also point out that it is very important to 
me that we have oversight on reports that are coming, and they must 
come to the FISA Court to explain the procedures they will follow. That 
type of oversight is what I followed for. In short, I will never forget 
being over there in charge of my carrier battle group, fighting in 
Afghanistan, that what I was fighting for was security, number one, 
properly balanced with civil rights. This bill does do that. I wouldn't 
vote for it any other way unless it did.
  Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield as 
much time as he may consume to the distinguished ranking member of the 
Rules Committee, the gentleman from California (Mr. Dreier).
  Mr. DREIER. Mr. Speaker, I thank my friend for yielding and I 
appreciate his fine work.
  It's no secret that there is a lot of controversy surrounding this 
issue of modernization of the Foreign Intelligence Surveillance Act and 
everything that surrounds our effort to successfully prosecute this war 
on terror. We know that sacrifices have been made. We know that 
sacrifices continue to be made. And we're all very committed to the 
civil liberties of every single American. That's why I'm convinced that 
we are not going to take actions which will in any way undermine the 
civil liberties of our fellow Americans.
  It is very important to note, Mr. Speaker, that as we look at this 
issue, there is a great deal of bipartisanship that exists. 
Unfortunately, it's not in this body. And I recognize that as the 
people's House we have a unique responsibility and we should not in any 
way become a rubber stamp for action taken by the other body. But I 
will say this. As we look at bipartisanship, it extends beyond our 
colleagues in the United States Senate. It does exist right here in the 
House, in that 21 Democrats signed a letter to the Speaker and made the 
specific request that we have a chance to vote on the proposal that is, 
in fact, the bipartisan compromise that did emerge from the Senate. We 
also have had a bipartisan group of attorneys general across the

[[Page 4361]]

country who have indicated that they very much believe that we should 
proceed with taking the action that is embodied in that bipartisan 
compromise that has emerged from the Senate.
  And, Mr. Speaker, I think one of the most important things that we 
should note is not simply bipartisanship but something that clearly 
transcends any kind of politics or partisanship, and that is the words 
that come from the Director of National Intelligence, Mike McConnell. 
And when I say that he transcends partisanship, I would like to remind 
our colleagues that this is a man who has spent four decades of his 
life working in the intelligence field. He was the head of the National 
Security Agency for President Bill Clinton, and he now serves as the 
Director of National Intelligence.
  In testimony before the Judiciary Committee, he referred to the fact 
that there has been a 66 percent reduction, a two-thirds reduction in 
the amount of information that they need, that they should be able to 
glean in the intelligence area. And he has said that in his discussions 
and negotiations with those in the telecommunications industry that 
they will not be able to continue as they have in the past to help us 
prosecute this war if they don't have this immunity.
  Now, Mr. Speaker, I think that one of the things that we in this 
debate on the rule are saying is that, let's just allow a vote on that 
bipartisan compromise, the so-called Rockefeller-Bond bill that emerged 
from the Senate. Sixty-eight Democrats and Republicans came together 
and agreed on it. And we had an interesting Rules Committee meeting, 
Mr. Speaker, in which we simply said, okay, we're going to have a 
chance to vote on the measure that will emerge from the majority, but 
why if as my very dear friend, the chairman of the Committee on the 
Judiciary, Mr. Conyers said, he said he wanted there to be an exchange 
of ideas, if there's going to be an exchange of ideas, let's at least 
allow our colleagues to have an up-or-down vote on that bipartisan 
compromise which embodies the above-partisan recommendations of the 
Director of National Intelligence, the bipartisan recommendations of 
the attorneys general across the country and simply say that we should 
have a chance to vote on it. It's very unfortunate that this rule 
denies Members of the House of Representatives the opportunity to have 
that vote.
  Mr. Speaker, I urge my colleagues to vote down this rule. We need to 
defeat this rule so that we can in fact have a package that will allow 
us to do everything we need as we pursue our very, very important 
responsibility, and that is to secure our Nation.
  Mr. ARCURI. Mr. Speaker, I would like to yield 2 minutes to the 
gentleman from New Jersey, a member of the Intelligence Committee, Mr. 
Holt.
  Mr. HOLT. Mr. Speaker, I thank the gentleman, and I am pleased to 
rise to say that not only do we have enough time to debate this, but we 
have a very good, well-structured bill in front of us.
  It is an important role of the Federal Government to look after the 
safety and the security of the American people. This bill does that. It 
is a well-structured bill that gives telecom companies the opportunity 
they have asked for to defend themselves in court. It provides for a 
congressional commission that will look at how electronic surveillance 
has been conducted and will make recommendations. It includes a 
reasonable expiration date to keep Congress involved in the oversight 
of this. And I would argue most importantly this legislation provides 
prior involvement of the court in all intercepts of communications of 
Americans. Critically important.
  Here are the facts. This bill gives our intelligence community the 
flexibility they need to collect information on our enemies while 
protecting the American people in every aspect. And it mandates 
extensive reviews and reporting requirements on the electronic 
surveillance programs in question. It rejects the President's efforts 
to redefine the relationship between the people and their government, a 
very key point.
  I commend the Speaker, the leader, the Chair of the Judiciary 
Committee, the Chair of the Intelligence Committee for negotiating with 
a firm tone and a principled approach to give us very good legislation, 
a very good bill despite the fact that they've had to work with the 
relentless drumbeat of propaganda and disinformation orchestrated by 
the administration in this matter. I commend them for producing such 
good legislation in such difficult circumstances.
  Mr. HASTINGS of Washington. Mr. Speaker, may I inquire how much time 
remains on both sides.
  The SPEAKER pro tempore. The gentleman from Washington has 19\1/2\ 
minutes. The gentleman from New York has 18 minutes.
  Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5 
minutes to the gentleman from California (Mr. Royce).

                              {time}  1045

  Mr. ROYCE. I thank the gentleman.
  Mr. Speaker, I am rising to oppose the rule. As I think you know, we 
are going to end up in a circumstance here, according to our Director 
of National Intelligence, where, for the first time, frankly, this 
refusal to protect our telecom companies, who face some 40 lawsuits and 
billions of dollars, our refusal to allow for the protection for them 
to defend themselves will end up stopping the intelligence 
professionals from conducting surveillance of foreign persons in 
foreign countries. It's really because they cannot read the minds of 
their terrorist targets and guarantee that they would not call the 
United States or one of their people in the United States.
  Unfortunately, sometimes they do. Mahmood Karimi came into this 
country in the trunk of a car over the border of Mexico after paying 
$5,000. He was the brother, by the way, of the Hezbollah general in 
southern Lebanon who launched the attacks there.
  I was in Haifa in August, and the Prime Minister of Israel, by the 
way, told me that one of his great concerns was the advantages that had 
been given up and the knowledge that had now become known to the 
terrorists. He said one of the reasons we are having such difficulty 
with Hezbollah is because they now know how the United States, how 
other countries were able to apprehend the information before these 
attacks came.
  But in any event, the brother of the individual who was launching 
those attacks some years ago actually came into the United States. I am 
certain somehow he got phone calls out of Beirut, and I am sorry if we 
violated his constitutional rights. I know there is the assumption that 
once a foreign agent from a foreign country is in this country, we 
don't have the right to monitor and violate his civil rights.
  Here is what I do know about this individual: I know that he did 
manage to get through our southern border in my State. I know that 
somehow we apprehended him up in Detroit. I know that once we did, we 
found 50 of his cohorts who were part of the Hezbollah cell.
  Now, I am not making the allegation that we used this kind of 
intelligence in order to apprehend him, because, frankly, I don't know 
how we apprehended him. I only give you that example to say these are 
the types of individuals who are operating. He was trained by Iran; he 
was trained by foreign intelligence. He was here in the United States, 
and I imagine in one case out of 1,000, when someone is trying to make 
a phone call from Beirut to their agent, let's say in Syria, 
occasionally that call might come into the United States because there 
might be a foreign agent here.
  The point I want to make is that this is, frankly, more protection 
than Americans get under court-ordered warrants in Mob and other 
criminal cases. The issue we are debating, frankly, is pretty 
important. It's an issue of life and death, frankly, as far as I am 
concerned.
  I serve as the ranking member of the Terrorism and Nonproliferation 
Subcommittee. That there have not been attacks on our soil since 9/11 
is due to the improved surveillance in real-time that we are able to 
conduct against foreign terrorists.
  Now, that good record in no way should lead us to discount the 
jihadists, because the image of Osama

[[Page 4362]]

bin Laden's allies operating in some remote terrain somewhere may give 
the impression that our foes are isolated. I want to share with you, 
because of the Internet our foes are not isolated. We are confronting a 
virtual caliphate. Radical jihadists are physically disbursed, but they 
are united through the Internet. They use the tool there to recruit and 
plot their terrorist attacks. They use electronic communications for 
just such a purpose, and they are very sophisticated in that use.
  How has the West attempted to confront that? Well, the British used 
Electronic surveillance in real-time and they used it last year to stop 
the attack on 10 transatlantic flights. They prevented that attack a 
year ago by wiretapping. The French authorities used wiretaps to lure 
jihadists basically into custody and prevented a bomb attack.
  Given this threat, it is unfathomable that we would weaken our most 
effective preventive tool. That's exactly what this bill does, in the 
opinion of Admiral McConnell, whose job it is to protect our security. 
Admiral McConnell said that we are actually missing a significant 
portion of what we should be getting. Now, he has served both 
Democratic and Republican administrations with distinction.
  I would ask those so distrustful, go ahead, discount his estimate, 
cut them in half, say we lose one-third of our intelligence as a result 
of this bill passing and the problems that we foment with telecom 
companies around the world. I would argue that is too much to give up. 
I don't want to lose a single percent of our intelligence on terrorist 
communications. With nuclear and biological material floating around 
the globe, we don't have that margin of error.
  Mr. ARCURI. I thank the gentleman from California. I just want to 
assure him that I think I speak for the entire Democratic Caucus when I 
say that we share his concern for the safety of this country.
  However, when he speaks about things that just blatantly aren't true, 
for some reason, and I don't know if it's an attempt to frighten the 
American people, it's troubling. This bill, this FISA bill, allows the 
government to wiretap any foreign national, whether they are overseas 
or they are here. This is just blatantly untrue. What he says about the 
fact is that we cannot wiretap, we can't monitor a person that comes to 
this country who is a foreigner. It's just blatantly untrue. This FISA 
bill allows that to happen.
  It's somewhat disheartening when people mention facts that just 
aren't true, and I certainly hope it's not for political reasons; but 
let's stick to the facts, because the facts are clearly that this bill 
allows that to happen.
  I yield 2\1/2\ minutes to the gentlewoman from Texas, a member of the 
Judiciary Committee, Ms. Jackson-Lee.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I imagine that Admiral 
McConnell is watching and listening, and so allow me this morning to 
thank all of the patriots that are stationed around the world that are 
the front lines of the national security and defense and intelligence 
community of this Nation. To the American people, let me say on your 
behalf, we thank them, for they are working every day, and they are 
working diligently, and they are being successful.
  This rule today supporting the underlying bill should be passed, 
because Admiral McConnell is aware that every single tool that he has 
asked for, foreign-to-foreign and otherwise in terms of surveillance, 
is in this bill.
  Interestingly enough, if you will talk to members of the law 
enforcement community and those who are dealing with terrorists, they 
will tell you that they are intercepting terrorists. They are finding 
terrorists every single day. I personally spoke to law enforcement who 
noted in one region of the country that they have intercepted three 
terrorists. So what we are doing today is providing the codified 
document to secure your civil liberties, to suggest that if the focus 
of your surveillance is actually an American, they have to have a court 
intervention, a quick court intervention.
  As it relates to our telecom companies, is anyone suggesting that 
they are not patriots? Is anyone suggesting that they will not comply 
with a request by the national security community?
  They will, because in this bill it indicates to them that if they get 
a letter that suggests that we need their help, that they are not 
breaking the law, that all of the laws have been in compliance 
certified by the AG, they get absolute immunity.
  So going forward, there will be no question. If that happened in the 
past, they have absolute immunity. There will be no gaping hole, and 
the idea of avoiding retroactive immunity is a question to America. It 
is protecting your civil liberties. Yes, we have been secure, or we 
have avoided a tragedy since 9/11. It is because we have given them the 
tools, and now we give them better tools.
  It is important to pass this legislation, because it advances the 
security of America. But what it says to the world is that we are not 
terrorized by the terrorists. We believe in security, but we believe in 
the civil liberties of all Americans.
  The Constitution still stands.
  Mr. Speaker, I rise today in support of the H. Res. 1041, Providing 
for Consideration of the Senate Amendment to H.R. 3773, the Foreign 
Intelligence Surveillance Act (FISA) Amendments Act. This Rule will 
allow us to examine the Senate Amendment and to consider the many 
concerns associated with this act.
  We have worked as a body to resolve our issues with FISA and with 
those of our Senate colleagues without eviscerating the fundamental 
rights embodied in the Bill of Rights. Leadership has worked tirelessly 
to not simply reconcile the Senate language with the RESTORE Act (H.R. 
3773), which we passed in the House on November 15, 2007, but 
leadership has also worked tirelessly to go beyond the RESTORE Act. 
This current FISA Reform legislation has been borne out of this 
tireless struggle. Let me detail some of the ways that the FISA Reform 
Act balances security and liberty: adopting provisions from the Senate 
bill that will for the first time provide statutory protections for 
U.S. persons overseas, that ensures surveillance of their 
communications are conducted through the courts; and providing a 
mechanism for telecommunications carriers to prove their case that they 
did not engage in any wrongdoing and to guarantee due process with a 
fair hearing in court.
  Like the RESTORE Act, the FISA reform legislation provides for 
collection against terrorist organizations such as Al Qaeda, while 
providing prior court approval of acquisition and an on-going process 
of review and oversight in order to protect Americans' privacy.
  The FISA Reform Act creates a bipartisan commission on Warrantless 
Electronic Surveillance Activities with strong investigatory powers in 
order to preserve the rule of law in pending and future lawsuits. This 
revised version of the bill reiterates FISA's exclusive control for 
conducting foreign intelligence surveillance, unless a specific 
statutory authorization for surveillance is enacted. This is an area 
where the House version has differed from the Senate.
  Perhaps the most important distinction between the House version of 
the bill and the Senate's version is that the Court must approve 
surveillance procedures prior to the start of surveillance. Under the 
Senate bill, the Director of National Intelligence and the Attorney 
General authorize surveillance and submit procedures to the FISA Court 
5 days after surveillance begins. Under the Senate bill, the FISA Court 
has no firm deadline for approving the procedures. The Senate bill does 
not go far enough in protecting the individual rights of Americans.
  The FISA Reform Act requires submission to Congress and the FISA 
Court of ``reverse targeting'' guidelines that are to be promulgated by 
the NSA. Specifically, these guidelines will determine whether the 
``significant purpose'' of the surveillance is to acquire 
communications of a specific U.S. person. In this regard, the House 
bill gives more teeth to the provisions in the Senate bill, which only 
has general prohibitions against reverse targeting and does not require 
the promulgation of agency guidelines addressing reverse targeting.
  Both the FISA Reform Act and the Senate bill, provide for prospective 
liability protection for telecommunications companies that assist with 
lawful surveillance activities. However, the FISA Reform Act goes 
further by ensuring that telecommunication companies complying with the 
Protect America Act (PAA) have liability protection for lawful 
surveillance that occurred after the expiration of the PAA.

[[Page 4363]]

  Another major difference between the bills is that the FISA Reform 
Act does not provide for any retroactive immunity. Instead, the FISA 
Reform Act provides for a process to allow district courts to review 
classified evidence in camera and ex parte (in front of the judge 
without the presence of the plaintiff). This allows the 
telecommunications companies to have their day in court and to assert 
defenses that already exist under FISA and other statutes. This process 
simply creates a pathway for companies to assert such defenses.
  This process, which allows the Court to review information and the 
companies to prove their case, prevents the Executive Branch from 
blocking the companies from asserting their defenses under the doctrine 
of ``state secrets'' privilege. The FISA Reform Act permits the 
telecommunication companies an opportunity to defend themselves but 
does not create any new defenses or immunity and it does not excuse any 
conduct that may have been unlawful. Under the House bill, 
telecommunication companies can prove their innocence in court without 
the protection of the States immunity privilege. If these companies 
cannot prove that their actions were proper then they will be held 
accountable.
  The Senate bill grants full immunity to any telecommunication company 
where the Attorney General certified that assistance was requested as 
part of the President's warrantless surveillance program. This blanket 
immunity goes to far, and do not support full immunity.
  I believe the FISA Reform Act is better because it provides the 
telecommunications companies with due process and an opportunity to 
prove their guilt or innocence. I cannot support a case for blanket 
immunity and the FISA Reform Act does not allow it.
  Lastly, the FISA Reform Act provides a forward looking provision that 
establishes a bipartisan National Commission, appointed by Congress. 
The Commission will investigate and report to Congress and the public 
about the administration's warrantless surveillance activities.
  Homeland security is not a Democratic or a Republican issue, it is 
not a House or Senate issue; it is an issue for all Americans--all of 
us need to be secure in our homes, secure in our thoughts, and secure 
in our communications.
  I find it disturbing that our Republican colleagues will not join us 
to ensure that Americans are safe here and abroad. Disturbing that they 
do not recognize that we must protect the civil liberties of this 
Nation just as we protect American lives.
  Mr. Speaker, in August of last year, I strongly opposed S. 1927, the 
so-called ``Protect America Act'' (PAA), when it came to a vote on the 
House floor. Had the Bush administration and the Republican-dominated 
109th Congress acted more responsibly in the two preceding years, we 
would not have been in the position of debating legislation that had 
such a profoundly negative impact on the national security and on 
American values and civil liberties in the crush of exigent 
circumstances. As that regrettable episode clearly showed, it is true 
as the saying goes that haste makes waste.
  The PAA was stampeded through the Congress in the midnight hour of 
the last day before the long August recess on the dubious claim that it 
was necessary to fill a gap in the Nation's intelligence gathering 
capabilities identified by Director of National Intelligence Mike 
McConnell. In reality, it would have circumvented the Fourth Amendment 
to the Constitution and represented an unwarranted transfer of power 
from the courts to the executive branch and a Justice Department led at 
that time by an Attorney General whose reputation for candor and 
integrity was, to put it charitably, subject to considerable doubt.
  Under the House bill, the Foreign Intelligence Surveillance Court 
(FISC) is indispensable and is accorded a meaningful role in ensuring 
compliance with the law. The bill ensures that the FISC is empowered to 
act as an Article III court should act, which means the court shall 
operate neither as a rubber-stamp nor a bottleneck. Rather, the 
function of the court is to validate the lawful exercise of executive 
power on the one hand, and to act as the guardian of individual rights 
and liberties on the other.
  Moreover, Mr. Speaker, it is important to point out that the loudest 
demands for blanket immunity did not come from the telecommunications 
companies but from the administration, which raises the interesting 
question of whether the administration's real motivation is to shield 
from public disclosure the ways and means by which government officials 
may have ``persuaded'' telecommunications companies to assist in its 
warrantless surveillance programs.
  My amendment, which was added during the markup last year, made a 
constructive contribution to the RESTORE Act by laying down a clear, 
objective criterion for the administration to follow and the FISA court 
to enforce in preventing reverse targeting.
  ``Reverse targeting'' is a concept well known to members of the 
Judiciary Committee but not so well understood by those less steeped in 
the minutiae of electronic surveillance; it is the practice where the 
Government targets foreigners without a warrant while its actual 
purpose is to collect information on certain U.S. persons.
  One of the major concerns that libertarians, as well as progressives 
and civil liberties organizations, have with the FISA is that the 
temptation of national security agencies to engage in reverse targeting 
is often difficult to resist in the absence of strong safeguards to 
prevent it.
  My amendment, accepted in the House Judiciary mark up, reduced any 
temptation to resort to reverse targeting by requiring the 
administration to obtain a regular, individualized FISA warrant 
whenever the ``real'' target of the surveillance is a person in the 
United States.
  The amendment achieved this objective by requiring the administration 
to obtain a regular FISA warrant whenever a ``significant purpose of an 
acquisition is to acquire the communications of a specific person 
reasonably believed to be located in the United States.''
  The language used in my amendment, ``significant purpose,'' is a term 
of art that has long been a staple of FISA jurisprudence and thus is 
well known and readily applied by the agencies, legal practitioners, 
and the FISA Court. Thus, the Jackson-Lee Amendment provided a clearer, 
more objective, criterion for the administration to follow and the FISA 
court to enforce to prevent the practice of reverse targeting without a 
warrant, which all of us can agree should not be permitted.
  Mr. Speaker, nothing in the Act or the amendments to the Act should 
require the Government to obtain a FISA order for every overseas target 
on the off chance that they might pick up a call into or from the 
United States. Rather, what should be required, is a FISA order only 
where there is a particular, known person in the United States at the 
other end of the foreign target's calls in whom the Government has a 
significant interest such that a significant purpose of the 
surveillance has become to acquire that person's communications.
  The acquisition of communications will happen over time and the 
Government will have the time to get an order while continuing its 
surveillance. It is the national security interest to require the 
Government to obtain an order at that point, so that it can lawfully 
acquire all of the target person's communications rather than 
continuing to listen to only some of them.
  We are living in a time of economic crisis and acts of unfettered 
terrorism. Former President Franklin Delano Roosevelt said that ``our 
national determination to keep free of foreign wars and foreign 
entanglements cannot prevent us from feeling deep concern when ideals 
and principles that we have cherished are challenged.''
  Like former President Roosevelt, we must secure our Nation from 
foreign entanglements but at the same time we must continue to champion 
the fundamental freedoms of all Americans regardless of whether the 
surveillance occurs in the United States or abroad.
  It is very important to me; and it should be very important to 
Members of this body that we require what should be required in all 
cases--a warrant any time there is surveillance of a United States 
citizen.
  In short, the Senate amendment to the House amendment makes a good 
bill even better. For this reason alone, civil libertarians should 
enthusiastically embrace the amended H.R. 3773.
  The Bush administration would like the American people to believe 
that Democrats do not want to protect America. My Republican colleagues 
echo this false claim in both the chambers of Congress by questioning 
our patriotism. But I remind them that tyrannical behavior often 
questions the motivations of those seeking to protect civil liberties.
  Let us not fall prey to false proclamations of an administration that 
takes our Bill of Rights and lays it to the side when they feel like 
it. Security must go hand-in-hand with liberty. Oppression of some for 
the alleged security of others is not the example this great Nation 
should set.
  As I wrote in the Politico, ``the best way to win the war on terror 
is to remain true to our democratic traditions. If it retains its 
democratic character, no nation and no loose confederation of 
international villains will defeat the United States in the pursuit of 
its vital interests.''
  Thus, the way forward to victory in the war on terror is for the 
United States to redouble its commitment to the Bill of Rights and the 
democratic values which every American will risk his or her life to 
defend. It is only by preserving our attachment to these cherished 
values that America will remain forever the home

[[Page 4364]]

of the free, the land of the brave, and the country we love.
  Mr. Speaker, FISA has served the Nation well for nearly 30 years, 
placing electronic surveillance inside the United States for foreign 
intelligence and counter-intelligence purposes on a sound legal 
footing, and I am far from persuaded that it needs to be jettisoned.
  I continue to insist upon individual warrants, based on probable 
cause, when surveillance is directed at people in the United States. 
The Attorney General must still be required to submit procedures for 
international surveillance to the Foreign Intelligence Surveillance 
Court for approval, but the FISA Court should not be allowed to issue a 
basket warrant without making individual determinations about foreign 
surveillance.
  In all candor, Mr. Speaker, I must restate my firm conviction that 
when it comes to the track record of this President's warrantless 
surveillance programs, there is still not enough on the public record 
about the nature and effectiveness of those programs, or the 
trustworthiness of this administration, to indicate that they require a 
blank check from Congress.
  The Bush administration did not comply with its legal obligation 
under the National Security Act of 1947 to keep the Intelligence 
Committees ``fully and currently informed'' of U.S. intelligence 
activities. Congress cannot continue to rely upon incomplete 
information from the Bush administration or upon erroneous revelations 
leaked through the media. Instead Congress must conduct a full and 
complete inquiry into electronic surveillance in the United States and 
related domestic activities of the NSA, both those that occur within 
the United States and abroad.
  The inquiry must not be limited to the legal questions. It must 
include the operational details of each program of intelligence 
surveillance within the United States, including:
  (1) Who the NSA is targeting;
  (2) How it identifies its targets;
  (3) The information the program collects and disseminates; and most 
important;
  (4) Whether the program advances national security interests without 
unduly compromising the privacy rights of the American people.
  Given the unprecedented amount of information Americans now transmit 
electronically and the post-9/11 loosening of regulations governing 
information sharing, the risk of intercepting and disseminating the 
communications of ordinary Americans is vastly increased, requiring 
more precise--not looser--standards, closer oversight, new mechanisms 
for minimization, and limits on retention of inadvertently intercepted 
communications.
  Mr. Speaker, I encourage my colleagues to Join me In a vote of 
support for H. Res. 1041, the Rule providing for FISA Amendments Act. I 
yield back the balance of my time.
  Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3 
minutes to the distinguished Republican Conference chairman, Mr. Putnam 
from Florida.
  Mr. PUTNAM. I thank my friend for the time.
  Mr. Speaker, much of what we debate down here often is theoretical. 
We say if this passes, we believe this will happen. If this fails, we 
believe that will happen. Much of it is speculative. It is our opinions 
coming down here and directing, gazing into the future about what we 
think will happen.
  Much in this toxic atmosphere that is Washington that we debate is 
very partisan. This issue is neither theoretical nor partisan. It is 
not theoretical anymore, because this is now the 27th day that we have 
denied our intelligence agencies and law enforcement officials the 
tools they need to keep America safe.
  It is not partisan because the bill that we are asking you to vote 
for and support here in a few minutes already passed the Senate with 68 
Senators voting for it. It was voted out on a bipartisan basis.
  Now, anyone who follows the activities of the Senate knows that they 
have a hard time getting 68 votes for a Mother's Day resolution. For 
them to find 68 votes on an issue of this magnitude is remarkable.
  The only way that we can put back into place the provisions of the 
Protect America Act that allow us to prevent future plots and 
conspiracies and attacks on our homeland is to pass the Senate bill. If 
we do not pass the Senate bill today, Congress will leave for 2 more 
weeks, 2 more weeks that we will deny the eyes and ears to our law 
enforcement and intelligence officials who keep us safe.
  Now, let me just draw attention to the fact that 21 Blue Dog 
Democrats have put their names to a letter saying pass the Senate bill; 
68 Senators have voted to pass the Senate bill. The bipartisan Senate 
Intelligence Committee said, and I quote, ``Electronic communication 
service providers acted in good faith on a good faith belief that the 
President's program and their assistance was lawful.''
  This is not a theoretical debate. This is an important tool that we 
must restore to the hands of our intelligence agencies before Congress 
goes home for 2 more weeks. This is an example of the tyranny of the 
few blocking the will of the many. It is not just Republicans who say 
we need to pass this. It is Senator Rockefeller, chairman of the Senate 
Intelligence Committee. It is 21 Blue Dog Democrats.
  It is 25 States' attorneys general. This is too important to let it 
slip through our fingers before we go home for 2 weeks. Pass the 
previous question. Deem the Senate bill passed and give those who stand 
on alert as the guardians of our freedom and liberty, liberty and 
security on a daily basis, what they need to continue to keep us safe.
  Don't extend the 27 days of darkness for another 2 weeks. Give them 
the tools they need. Pass the previous question. Pass the Senate bill.
  Mr. ARCURI. Mr. Speaker, I yield 4\1/2\ minutes to the gentleman from 
New York, a member of the Judiciary Committee, Mr. Nadler.
  Mr. NADLER. Mr. Speaker, the last few weeks, the last few minutes we 
have heard assertions from our colleagues on the other side of the 
aisle that are false and designed to mislead and frighten the American 
people. They claim that we allowed the Protect America Act to expire, 
that we are dark for 27 days.
  Ken Wainstein, the Assistant Attorney General of the United States, 
and the Bush administration admitted that because of the provisions of 
the group warrants in the Protect America Act that had gone on for a 
year, didn't change anything. It is still in effect, number one.
  Number two, we forget, this House passed a FISA updating 
modernization bill in November, on November 14. We called it the 
RESTORE Act. We waited for the Senate to pass a bill so we could go to 
conference and compromise on it. When did they pass a bill? Not in 
November, not in December, not in January. Because of Republican foot-
dragging, they didn't pass the bill until February, mid-February, three 
months after we passed the bill here, and two days before we went home 
for a week for the Presidents Day recess.
  The President came out and said it's up to the House to pass the 
Senate bill, no questions asked. But there are a lot of questions about 
the Senate bill. Maybe our bill isn't perfect, but their bill is far 
from perfect, and our bill is closer to perfect than theirs.

                              {time}  1100

  So then we said, well, if you don't want, because catastrophe will 
happen, according to the President and the Republicans if we go home 
without passing the Senate bill, we will extend the Protect America Act 
for 3 weeks until we can come back and deal with this. Who voted it 
down? The Republicans. They said, no, don't extend it. The President 
said he would veto an extension.
  So let's not hear any remarks on this floor from that side about how 
we are dark because the act expired. It expired because they made it 
expire. They voted against a 21-day extension that we could have 
renewed if necessary until we got this all figured out. So let's not 
hear any less-than-honest assertions about we are dark and we are 
unprotected and it is the Democrats' fault.
  Mr. Speaker, we have a very good bill here. It gives the intelligence 
community every single tool they need and every tool they say they 
need. How does it differ from the Senate bill? In two ways. One, it 
provides for some closer judicial supervision, because while we are 
giving the intelligence community the tools they need to wiretap on 
American citizens, on people who are not American citizens, we have to 
make sure that our constitutional rights and liberties are protected so 
that this country, which we

[[Page 4365]]

have all defended, and we all want to defend, remains worthy of being 
defended by defending our own liberties.
  Remember why we enacted protections in the first place, because the 
administration at the time wiretapped Martin Luther King. We don't want 
that to happen again by a future administration. And so we must protect 
our civil liberties.
  We are told that telecom companies, if we don't provide retroactive 
immunity, they won't cooperate in the future, we won't get their help. 
Number one, that is an aspersion on their patriotism. Number two, they 
can be compelled to do so under court order. And number three, they 
have always had immunity. They have it now. All they have to do to have 
immunity is to have a request from the administration that says: A, we 
need your help; B, you are not violating the law if you do what we ask; 
and C, you don't need a court order. If they get that request, whether 
those assertions are true or not, as long as the administration says we 
need your help, what we are asking you to do won't violate the law, and 
you don't need a court order, they are absolutely immune. And they have 
always had this immunity.
  So why do they need retroactive immunity, they say because the 
administration won't permit them to go to court and say we were asked 
for help, we gave that help. We have this request and we got the legal 
assurances because the administration won't let that go to court 
because it says it will violate State secrets.
  So what does our bill do? It says you can go to court under secret 
procedures to protect the security of the State secrets, but you can 
assert your defense in court and get the case thrown out if you at 
least got the assurance by the administration in advance, which is all 
the law required. If you didn't get that, then you have no respect for 
the privacy rights of Americans and you don't deserve immunity. Even if 
we gave retroactive immunity for the future to the telecom company that 
helped us next week, they still have the same requirements for 
immunity. And if they wanted to go to court to assert them if someone 
sued them, they would still have to go to court and say the same thing. 
So you are dealing with a one-time fix.
  Retroactive immunity takes it out of the courts and says Congress 
shall say to American citizens you're wrong, you can't protect your 
constitutional rights in court, you're right. That is a duty for the 
courts, not for Congress. That is the basis of the protections of all 
of our rights. The Senate bill goes the wrong way. We protect the 
telecom companies and protect our liberties. It is the right way to go. 
I urge adoption of this rule.
  Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 1 
minute to the gentleman from Ohio (Mr. Boehner), the distinguished 
Republican leader.
  Mr. BOEHNER. Let me thank my colleague from Washington for yielding.
  My colleagues, several years ago when the current Speaker, Speaker 
Pelosi, had my job as the minority leader, she said that bills should 
generally come to the floor under a fair and open process with 
amendments allowed and substitutes allowed.
  And yet here we are today once again violating the very words that 
she said how the minority should be treated by bringing a bill to the 
floor, a Senate bill with amendments crafted by the House with no 
opportunity for amendments, no opportunity for substitutes. And no 
opportunity to vote straight up or down on the bipartisan bill that 
came over from the Senate.
  I think that what we have seen here is just a pattern of we are for 
this, we create rules that allow the minority the opportunity to be 
fairly heard, and yet they are routinely violated.
  And so the only way we can have a straight up-or-down vote on the 
Senate bill that passed the Senate 68-29, the only way we can have a 
vote on that is to defeat the previous question. Why do we want to deny 
the Members of the House to vote on the bipartisan Senate bill? I can 
probably tell you, that's because it would pass. A majority of the 
Members of the House of Representatives are in favor of the Senate 
bill. But House leaders are standing in the way of the opportunity for 
House Members to actually vote on that bill.
  We can get into the merits of the changes that were made to the 
Senate bill that are being debated here. I think they handcuff our 
intelligence officials. I think that they open up a wide avenue for 
trial lawyers to hold communication companies at bay and threaten their 
very willingness to help us in this very serious business of tracking 
down those who would want to do Americans harm.
  And so I would ask my colleagues to defeat the previous question. 
Let's have a chance to vote on the bipartisan Senate bill and let's 
allow the House to work its will.
  Mr. ARCURI. Mr. Speaker, I yield 3 minutes to the gentleman from 
Texas, the distinguished chairman of the Intelligence Committee, Mr. 
Reyes.
  Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
  I'm not a lawyer, but I am told by lawyers that every lawyer learns 
to argue the following way: When the law is against you, they are 
taught to argue the facts. When the facts are against you, they are 
taught to argue the law. To a certain extent, that is what is going on 
here today.
  We just heard from the distinguished minority leader that he wants 
the House to go in neutral, put our engine in neutral and just vote on 
what the Senate has sent over. In other words, we want to rush to 
rubber-stamp what the administration wants. That's not going to happen.
  We also heard this morning that somehow my good friend from 
Washington State says they haven't had enough time to debate these 
issues, the FISA issue. I would remind my good friend that we had 
invited our colleagues on the Republican side to work with us, to go 
through a process, the process of setting up our ability to go to 
conference, and they refused. They refused to participate. So it is not 
a failure of getting enough time to participate in the debate; it is a 
failure of wanting to participate because the rationale is let's 
rubber-stamp what the administration wants, which is the Senate 
version.
  We also heard that somehow we are losing information. Somehow we are 
at a disadvantage because the Protect America Act expired. Nothing 
could be further from the truth. I would remind all of the Members that 
were here last night that I held up two documents, and one of those 
documents authored by the DNI and the Attorney General gave you the 
information that refutes that argument.
  We have done everything that the DNI has asked us to do in this bill. 
He wants us to give the intelligence community the ability to monitor 
foreign to foreign. This bill does that.
  He wants us to give the telecom companies the opportunity to state 
their case in order to get immunity. This bill does that.
  The third thing he wanted was to make sure that any time that there 
is an American involved or an American address or phone involved, that 
a warrant be secured. This bill requires that.
  This bill puts the FISA Court back in the process. That's the 
American way.
  I will close by saying that I come from a State that reveres the 
second amendment, our right to bear arms. But I would submit to all of 
you, my colleagues here, that that amendment would be irrelevant if we 
were to give the administration exactly what they want, and that is the 
ability to monitor anyone, any time, for any reason, because a weapon 
or a gun is not going to do you any good if the government knows your 
every move.
  The Senate version is their answer to give the administration exactly 
what they want. We took a different approach. Instead of being in 
neutral, we are telling the administration and, with all due respect, 
we are telling the Senate, let's reconcile our differences. We have 
given the DNI every single thing that he wants. And simply stated 
today, that dog is not hunting that would create an atmosphere of fear 
for America.

[[Page 4366]]


  Mr. HASTINGS of Washington. Mr. Speaker, I yield myself 15 seconds 
before I yield to the gentleman from Pennsylvania.
  The gentleman from Texas just said that he wanted to reconcile the 
differences between the House position and the Senate; yet there has 
never been a motion or an attempt by the House to go to conference on 
these two bills. If you truly want to have a compromise, why don't you 
go to conference? That hasn't happened.
  Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania 
(Mr. Dent).
  Mr. DENT. Mr. Speaker, I rise to urge that we defeat the previous 
question so we can adopt the Protect America Act.
  People in this country think that Washington, D.C., is broken, and 
they are absolutely right. It is. And this issue is proof positive of 
why Washington, D.C., is broken. Yes, we do have an agreement. It is a 
bipartisan agreement, 68 votes in the Senate. There is a majority here, 
but the majority leadership won't allow us to consider this very 
important and necessary legislation.
  Senator Rockefeller, the Democratic chairman of the Intelligence 
Committee in the Senate, has said our intelligence capacities are being 
degraded because we have failed to pass the Protect America Act.
  You know, it is time that we put the national interest ahead of the 
special interests. Why are we protecting the most litigious among us in 
our society at the expense of our troops serving overseas? We know the 
issues. It is retroactive immunity. The telecommunications companies 
were attempting to help us in good faith, and no good deed goes 
unpunished. That is what it happening here. It is time to get the job 
done.
  I'm going to refer to an article I read in the Wall Street Journal 
back in January, 2006, by Debra Burlingame, the sister of the pilot who 
crashed into the Pentagon. The title is, ``Al Qaeda, not the FBI, is 
the greater threat to America.'' I think we should heed her advice and 
recall, because of that wall that existed before 9/11 between the 
intelligence agency and our domestic law enforcement, it prevented us 
from being more effective.
  Today, we are placing barriers between our government and those who 
want to help us in the telecommunications sector, but they are going to 
be forced to comply with this. They will not be able to do so 
voluntarily. We know what the issue is. The Fraternal Order of Police, 
many State attorneys general, the VFW, all agree we should pass the 
bipartisan. We have it within our means to do it. I don't understand 
why not. It is important for the majority leadership to explain to this 
House why they won't let this bipartisan agreement be adopted.
  The American people are watching. They want us to get the job done. 
They have had enough.
  Mr. Speaker, I include the Burlingame article for the Record.

             [From the Wall Street Journal, Jan. 30, 2006]

                         Our Right to Security


        al qaeda, not the fbi, is the greater threat to america

                         (By Debra Burlingame)

       One of the most excruciating images of the September 11 
     attacks is the sight of a man who was trapped in one of the 
     World Trade Center towers. Stripped of his suit jacket and 
     tie and hanging on to what appears to be his office curtains, 
     he is seen trying to lower himself outside a window to the 
     floor immediately below. Frantically kicking his legs in an 
     effort to find a purchase, he loses his grip, and falls.
       That horrific scene and thousands more were the images that 
     awakened a sleeping nation on that long, brutal morning. 
     Instead of overwhelming fear or paralyzing self-doubt, the 
     attacks were met with defiance, unity and a sense of moral 
     purpose. Following the heroic example of ordinary citizens 
     who put their fellow human beings and the public good ahead 
     of themselves, the country's leaders cast aside politics and 
     personal ambition and enacted the USA Patriot Act just 45 
     days later.
       A mere four-and-a-half years after victims were forced to 
     choose between being burned alive and jumping from 90 
     stories, it is frankly shocking that there is anyone in 
     Washington who would politicize the Patriot Act. It is an 
     insult to those who died to tell the American people that the 
     organization posing the greatest threat to their liberty is 
     not al Qaeda but the FBI. Hearing any member of Congress 
     actually crow about ``killing'' or ``playing chicken'' with 
     this critical legislation is as disturbing today as it would 
     have been when Ground Zero was still smoldering. Today we 
     know in far greater detail what not having it cost us.
       Critics contend that the Patriot Act was rushed into law in 
     a moment of panic. The truth is, the policies and guidelines 
     it corrected had a long, troubled history and everybody who 
     had to deal with them knew it. The ``wall'' was a tortuous 
     set of rules promulgated by Justice Department lawyers in 
     1995 and imagined into law by the Foreign Intelligence 
     Surveillance Act (FISA) court.
       Conceived as an added protection for civil liberties 
     provisions already built into the statute, it was the wall 
     and its real-world ramifications that hardened the failure-
     to-share culture between agencies, allowing early information 
     about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to 
     fall through the cracks. More perversely, even after the 
     significance of these terrorists and their presence in the 
     country was known by the FBI's intelligence division, the 
     wall prevented it from talking to its own criminal division 
     in order to hunt them down.
       Furthermore, it was the impenetrable FISA guidelines and 
     fear of provoking the FISA court's wrath if they were 
     transgressed that discouraged risk-averse FBI supervisors 
     from applying for a FISA search warrant in the Zacarias 
     Moussaoui case. The search, finally conducted on the 
     afternoon of 9/11, produced names and phone numbers of people 
     in the thick of the 9/11 plot, so many fertile clues that 
     investigators believe that at least one airplane, if not all 
     four, could have been saved.
       In 2002, FISA's appellate level Court of Review examined 
     the entire statutory scheme for issuing warrants in national 
     security investigations and declared the ``wall'' a 
     nonsensical piece of legal overkill, based neither on express 
     statutory language nor reasonable interpretation of the FISA 
     statute. The lower court's attempt to micromanage the 
     execution of national security warrants was deemed an 
     assertion of authority which neither Congress or the 
     Constitution granted it. In other words, those lawyers and 
     judges who created, implemented and so assiduously enforced 
     the FISA guidelines were wrong and the American people paid 
     dearly for it.
       Despite this history, some members of Congress contend that 
     this process-heavy court is agile enough to rule on quickly 
     needed National Security Agency (NSA) electronic surveillance 
     warrants. This is a dubious claim. Getting a FISA warrant 
     requires a multistep review involving several lawyers at 
     different offices within the Department of Justice. It can 
     take days, weeks, even months if there is a legal dispute 
     between the principals. ``Emergency'' 72-hour intercepts 
     require sign-offs by NSA lawyers and pre-approval by the 
     attorney general before surveillance can be initiated. 
     Clearly, this is not conducive to what Gen. Michael Hayden, 
     principal deputy director of national intelligence, calls 
     ``hot pursuit'' of al Qaeda conversations.
       The Senate will soon convene hearings on renewal of the 
     Patriot Act and the NSA terrorist surveillance program. A 
     minority of senators want to gamble with American lives and 
     ``fix'' national security laws, which they can't show are 
     broken. They seek to eliminate or weaken anti-terrorism 
     measures which take into account that the Cold War and its 
     slow-moving, analog world of landlines and stationary targets 
     is gone. The threat we face today is a completely new 
     paradigm of global terrorist networks operating in a high-
     velocity digital age using the Web and fiber-optic 
     technology. After four-and-a-half years without another 
     terrorist attack, these senators think we're safe enough to 
     cave in to the same civil liberties lobby that supported that 
     deadly FISA wall in the first place. What if they, like those 
     lawyers and judges, are simply wrong?
       Meanwhile, the media, mouthing phrases like ``Article II 
     authority,'' ``separation of powers'' and ``right to 
     privacy,'' are presenting the issues as if politics have 
     nothing to do with what is driving the subject matter and its 
     coverage. They want us to forget four years of relentless 
     ``connect-the-dots'' reporting about the missed chances that 
     ``could have prevented 9/11.'' They have discounted the 
     relevance of references to the two 9/11 hijackers who lived 
     in San Diego. But not too long ago, the media itself reported 
     that phone records revealed that five or six of the hijackers 
     made extensive calls overseas.
       NBC News aired an ``exclusive'' story in 2004 that 
     dramatically recounted how al-Hazmi and al-Mihdhar, the San 
     Diego terrorists who would later hijack American Airlines 
     flight 77 and fly it into the Pentagon, received more than a 
     dozen calls from an al Qaeda ``switchboard'' inside Yemen 
     where al-Mihdhar's brother-in-law lived. The house received 
     calls from Osama Bin Laden and relayed them to operatives 
     around the world. Senior correspondent Lisa Myers told the 
     shocking story of how, ``The NSA had the actual phone number 
     in the United States that the switchboard was calling, but 
     didn't deploy that equipment, fearing it would be accused of 
     domestic spying.'' Back then, the NBC script didn't describe 
     it as ``spying on Americans.'' Instead, it was called one of 
     the

[[Page 4367]]

     ``missed opportunities that could have saved 3,000 lives.''
       Another example of opportunistic coverage concerns the 
     Patriot Act's ``library provision.'' News reports have given 
     plenty of ink and airtime to the ACLU's unsupported claims 
     that the government has abused this important records 
     provision. But how many Americans know that several of the 
     hijackers repeatedly accessed computers at public libraries 
     in New Jersey and Florida, using personal Internet accounts 
     to carry out the conspiracy? Al-Mihdhar and al-Hazmi logged 
     on four times at a college library in New Jersey where they 
     purchased airline tickets for AA 77 and later confirmed their 
     reservations on Aug. 30. In light of this, it is ridiculous 
     to suggest that the Justice Department has the time, 
     resources or interest in ``investigating the reading habits 
     of law abiding citizens.''
       We now have the ability to put remote control cameras on 
     the surface of Mars. Why should we allow enemies to 
     annihilate us simply because we lack the clarity or resolve 
     to strike a reasonable balance between a healthy skepticism 
     of government power and the need to take proactive measures 
     to protect ourselves from such threats? The mantra of civil-
     liberties hard-liners is to ``question authority''--even when 
     it is coming to our rescue--then blame that same authority 
     when, hamstrung by civil liberties laws, it fails to save us. 
     The old laws that would prevent FBI agents from stopping the 
     next al-Mihdhar and al-Hazmi were built on the bedrock of a 
     35-year history of dark, defeating mistrust. More Americans 
     should not die because the peace-at-any-cost fringe and 
     antigovernment paranoids still fighting the ghost of Nixon 
     hate George Bush more than they fear al Qaeda. Ask the 
     American people what they want. They will say that they want 
     the commander in chief to use all reasonable means to catch 
     the people who are trying to rain terror on our cities. Those 
     who cite the soaring principle of individual liberty do not 
     appear to appreciate that our enemies are not seeking to 
     destroy individuals, but whole populations.
       Three weeks before 9/11, an FBI agent with the bin Laden 
     case squad in New York learned that al-Mihdhar and al-Hazmi 
     were in this country. He pleaded with the national security 
     gatekeepers in Washington to launch a nationwide manhunt and 
     was summarily told to stand down. When the FISA Court of 
     Review tore down the wall in 2002, it included in its ruling 
     the agent's Aug. 29, 2001, email to FBI headquarters: 
     ``Whatever has happened to this--someday someone will die--
     and wall or not--the public will not understand why we were 
     not more effective and 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, [bin Laden], is getting the most 
     `protection.' ''
       The public has listened to years of stinging revelations 
     detailing how the government tied its own--hands in stopping 
     the devastating attacks of September 11. It is an 
     irresponsible violation of the public trust for members of 
     Congress to weaken the Patriot Act or jeopardize the NSA 
     terrorist surveillance program because of the same illusory 
     theories that cost us so dearly before, or worse, for rank 
     partisan advantage. If they do, and our country sustains yet 
     another catastrophic attack that these antiterrorism tools 
     could have prevented, the phrase ``connect the dots'' will 
     resonate again--but this time it will refer to the trail of 
     innocent American blood which leads directly to the Senate 
     floor.

  Mr. ARCURI. Mr. Speaker, I would again just like to point out that 
what this bill does is unshackle the telecommunications companies 
because what we do want to do in this particular case is ensure that 
they are able to defend themselves if they have cooperated with the 
government and followed the law, and that is exactly what this bill 
does.
  Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman from Kansas 
(Mrs. Boyda).
  Mrs. BOYDA of Kansas. Mr. Speaker, I just had to come down to the 
floor and speak on this. No one, there isn't anybody who disagrees that 
we ought to be wiretapping the terrorists. No one disagrees with that. 
Democrats, Republicans, everyone wants to keep this country safe.

                              {time}  1115

  Let's make something real clear about what's at stake here. What's at 
stake is whether we wiretap Americans. That's what we're talking about.
  The bill that we proposed that we have here, it can be summarized in 
one thing: wiretap first, get permission later. Go out and be 
aggressive. As a matter of fact, you can spy on Americans. You can do 
anything. You can spy, you can go out there and keep our country safe.
  But when it comes to spying on Americans, that's the difference here. 
We believe that you need a warrant to do that, even after the fact of 6 
or 7 days later to go back and tell the court what you've done.
  I, for one, do not, and am not able to stand here and say, as the 
other side says, that the terrorists have already won; we need to give 
up our basic constitutional right. I don't believe that the terrorists 
have won, and I find it extremely discouraging.
  What I find so troubling is the same, same rhetoric that we heard for 
this march to Iraq and, quite honestly, lately this march to Iran. Its 
the same rhetoric that we're hearing now. It's ``trust me.''
  Well, I'll tell you what. I didn't get sent to Washington, DC not to 
speak up. A lot of people are worried sick that a 30-second ad is going 
to kick them out of office. And I'll tell you what, I will not put my 
own re-election ahead of the absolute determination that I have to make 
sure, first and foremost, that my family and your family are safe, but 
that we do not shred that Constitution to do it. This is not an either/
or, and we need to find a balance. I do not believe the terrorists have 
won.
  Mr. HASTINGS of Washington. Mr. Speaker, I reserve my time.
  Mr. ARCURI. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman 
from California (Ms. Zoe Lofgren), a member of the Judiciary Committee.
  Ms. ZOE LOFGREN of California. Mr. Speaker, I rise to urge support of 
the rule so we can adopt H.R. 3773.
  There's been a lot of very misleading and confusing rhetoric about 
the issue of immunity. The truth is the phone companies have immunity 
already under current law. It's 18 U.S. Code, section 2511. And let me 
just read part of it: ``Notwithstanding any other law, providers of 
communications services are authorized to provide information in two 
cases: if there's a court order, or if they receive a certification in 
writing by a person specified in the title or the Attorney General of 
the United States that says either no warrant or court order is 
required, all the statutory requirements have been met and the 
assistance is required.''
  The statute says no cause of action shall lie in any court against 
any provider of wire or electronic communications if they have received 
this certification.
  I submit the entire text of section 2511 for the Record.

    [From Westlaw, 18 U.S.C.A. Sec. 2511, Effective: Nov. 25, 2002]

      United States Code Annotated Currentness
     Title 18. Crimes and Criminal Procedure (Refs & Annos) 
     Part I. Crimes (Refs & Annos)
     Chapter 119. Wire and Electronic Communications Interception 
         and Interception of Oral Communications (Refs & Annos)
     Sec. 2511. Interception and disclosure of wire, oral, or 
         electronic communications prohibited

        (1) Except as otherwise specifically provided in this 
     chapter any person who--
        (a) intentionally intercepts, endeavors to intercept, or 
     procures any other person to intercept or endeavor to 
     intercept, any wire, oral, or electronic communication;
        (b) intentionally uses, endeavors to use, or procures any 
     other person to use or endeavor to use any electronic, 
     mechanical, or other device to intercept any oral 
     communication when--
        (i) such device is affixed to, or otherwise transmits a 
     signal through, a wire, cable, or other like connection used 
     in wire communication; or
        (ii) such device transmits communications by radio, or 
     interferes with the transmission of such communication; or
        (iii) such person knows, or has reason to know, that such 
     device or any component thereof has been sent through the 
     mail or transported in interstate or foreign commerce; or
        (iv) such use or endeavor to use (A) takes place on the 
     premises of any business or other commercial establishment 
     the operations of which affect interstate or foreign 
     commerce; or (B) obtains or is for the purpose of obtaining 
     information relating to the operations of any business or 
     other commercial establishment the operations of which affect 
     interstate or foreign commerce; or
        (v) such person acts in the District of Columbia, the 
     Commonwealth of Puerto Rico, or any territory or possession 
     of the United States;
        (c) intentionally discloses, or endeavors to disclose, to 
     any other person the contents of any wire, oral, or 
     electronic communication, knowing or having reason to know 
     that the information was obtained through the interception of 
     a wire, oral, or electronic communication in violation of 
     this subsection;
        (d) intentionally uses, or endeavors to use, the contents 
     of any wire, oral, or electronic

[[Page 4368]]

     communication, knowing or having reason to know that the 
     information was obtained through the interception of a wire, 
     oral, or electronic communication in violation of this 
     subsection; or
       (e) (i) intentionally discloses, or endeavors to disclose, 
     to any other person the contents of any wire, oral, or 
     electronic communication, intercepted by means authorized by 
     sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, 
     and 2518 of this chapter, (ii) knowing or having reason to 
     know that the information was obtained through the 
     interception of such a communication in connection with a 
     criminal investigation, (iii) having obtained or received the 
     information in connection with a criminal investigation, and 
     (iv) with intent to or improperly obstruct, impede, or 
     interfere with a duly authorized criminal investigation,

      shall be punished as provided in subsection (4) or shall be 
     subject to suit as provided in subsection (5).
        (2)(a)(i) It shall not be unlawful under this chapter for 
     an operator of a switchboard, or an officer, employee, or 
     agent of a provider of wire or electronic communication 
     service, whose facilities are used in the transmission of a 
     wire or electronic communication, to intercept, disclose, or 
     use that communication in the normal course of his employment 
     while engaged in any activity which is a necessary incident 
     to the rendition of his service or to the protection of the 
     rights or property of the provider of that service, except 
     that a provider of wire communication service to the public 
     shall not utilize service observing or random monitoring 
     except for mechanical or service quality control checks.
        (ii) Notwithstanding any other law, providers of wire or 
     electronic communication service, their officers, employees, 
     and agents, landlords, custodians, or other persons, are 
     authorized to provide information, facilities, or technical 
     assistance to persons authorized by law to intercept wire, 
     oral, or electronic communications or to conduct electronic 
     surveillance, as defined in section 101 of the Foreign 
     Intelligence Surveillance Act of 1978, if such provider, its 
     officers, employees, or agents, landlord, custodian, or other 
     specified person, has been provided with--
        (A) a court order directing such assistance signed by the 
     authorizing judge, or
       (B) a certification in writing by a person specified in 
     section 2518(7) of this title or the Attorney General of the 
     United States that no warrant or court order is required by 
     law, that all statutory requirements have been met, and that 
     the specified assistance is required.

      setting forth the period of time during which the provision 
     of the information, facilities, or technical assistance is 
     authorized and specifying the information, facilities, or 
     technical assistance required. No provider of wire or 
     electronic communication service, officer, employee, or agent 
     thereof, or landlord, custodian, or other specified person 
     shall disclose the existence of any interception or 
     surveillance or the device used to accomplish the 
     interception or surveillance with respect to which the person 
     has been furnished a court order or certification under this 
     chapter, except as may otherwise be required by legal process 
     and then only after prior notification to the Attorney 
     General or to the principal prosecuting attorney of a State 
     or any political subdivision of a State, as may be 
     appropriate. Any such disclosure, shall render such person 
     liable for the civil damages provided for in section 2520. No 
     cause of action shall lie in any court against any provider 
     of wire or electronic communication service, its officer, 
     employees, or agents, landlord, custodian, or other specified 
     person for providing information, facilities, or assistance 
     in accordance with the terms of a court order, statutory 
     authorization, or certification under this chapter.
        (b) It shall not be unlawful under this chapter for an 
     officer, employee, or agent of the Federal Communications 
     Commission, in the normal course of his employment and in 
     discharge of the monitoring responsibilities exercised by the 
     Commission in the enforcement of chapter 5 of title 47 of the 
     United States Code, to intercept a wire or electronic 
     communication, or oral communication transmitted by radio, or 
     to disclose or use the information thereby obtained.
        (c) It shall not be unlawful under this chapter for a 
     person acting under color of law to intercept a wire, oral, 
     or electronic communication, where such person is a party to 
     the communication or one of the parties to the communication 
     has given prior consent to such interception.
        (d) It shall not be unlawful under this chapter for a 
     person not acting under color of law to intercept a wire, 
     oral, or electronic communication where such person is a 
     party to the communication or where one of the parties to the 
     communication has given prior consent to such interception 
     unless such communication is intercepted for the purpose of 
     committing any criminal or tortious act in violation of the 
     Constitution or laws of the United States or of any State.
        (e) Notwithstanding any other provision of this title or 
     section 705 or 706 of the Communications Act of 1934, it 
     shall not be unlawful for an officer, employee, or agent of 
     the United States in the normal course of his official duty 
     to conduct electronic surveillance, as defined in section 101 
     of the Foreign Intelligence Surveillance Act of 1978, as 
     authorized by that Act.
        (f) Nothing contained in this chapter or chapter 121 or 
     206 of this title, or section 705 of the Communications Act 
     of 1934, shall be deemed to affect the acquisition by the 
     United States Government of foreign intelligence information 
     from international or foreign communications, or foreign 
     intelligence activities conducted in accordance with 
     otherwise applicable Federal law involving a foreign 
     electronic communications system, utilizing a means other 
     than electronic surveillance as defined in section 101 of the 
     Foreign Intelligence Surveillance Act of 1978, and procedures 
     in this chapter or chapter 121 and the Foreign Intelligence 
     Surveillance Act of 1978 shall be the exclusive means by 
     which electronic surveillance, as defined in section 101 of 
     such Act, and the interception of domestic wire, oral, and 
     electronic communications may be conducted.
        (g) It shall not be unlawful under this chapter or chapter 
     121 of this title for any person--
        (i) to intercept or access an electronic communication 
     made through an electronic communication system that is 
     configured so that such electronic communication is readily 
     accessible to the general public;
        (ii) to intercept any radio communication which is 
     transmitted--
        (I) by any station for the use of the general public, or 
     that relates to ships, aircraft, vehicles, or persons in 
     distress;
        (II) by any governmental, law enforcement, civil defense, 
     private land mobile, or public safety communications system, 
     including police and fire, readily accessible to the general 
     public;
        (III) by a station operating on an authorized frequency 
     within the bands allocated to the amateur, citizens band, or 
     general mobile radio services; or
        (IV) by any marine or aeronautical communications system;
        (iii) to engage in any conduct which--
        (I) is prohibited by section 633 of the Communications Act 
     of 1934; or
        (II) is excepted from the application of section 705(a) of 
     the Communications Act of 1934 by section 705(b) of that Act;
        (iv) to intercept any wire or electronic communication the 
     transmission of which is causing harmful interference to any 
     lawfully operating station or consumer electronic equipment, 
     to the extent necessary to identify the source of such 
     interference; or
       (v) for other users of the same frequency to intercept any 
     radio communication made through a system that utilizes 
     frequencies monitored by individuals engaged in the provision 
     or the use of such system, if such communication is not 
     scrambled or encrypted.
       (h) It shall not be unlawful under this chapter--
       (i) to use a pen register or a trap and trace device (as 
     those terms are defined for the purposes of chapter 206 
     (relating to pen registers and trap and trace devices) of 
     this title); or
       (ii) for a provider of electronic communication service to 
     record the fact that a wire or electronic communication was 
     initiated or completed in order to protect such provider, 
     another provider furnishing service toward the completion of 
     the wire or electronic communication, or a user of that 
     service, from fraudulent, unlawful or abusive use of such 
     service.
       (i) It shall not be unlawful under this chapter for a 
     person acting under color of law to intercept the wire or 
     electronic communications of a computer trespasser 
     transmitted to, through, or from the protected computer, if--
       (I) the owner or operator of the protected computer 
     authorizes the interception of the computer trespasser's 
     communications on the protected computer;
       (II) the person acting under color of law is lawfully 
     engaged in an investigation;
       (III) the person acting under color of law has reasonable 
     grounds to believe that the contents of the computer 
     trespasser's communications will be relevant to the 
     investigation; and
       (IV) such interception does not acquire communications 
     other than those transmitted to or from the computer 
     trespasser.
       (3)(a) Except as provided in paragraph (b) of this 
     subsection, a person or entity providing an electronic 
     communication service to the public shall not intentionally 
     divulge the contents of any communication (other than one to 
     such person or entity, or an agent thereof) while in 
     transmission on that service to any person or entity other 
     than an addressee or intended recipient of such communication 
     or an agent of such addressee or intended recipient.
       (b) A person or entity providing electronic communication 
     service to the public may divulge the contents of any such 
     communication--
       (i) as otherwise authorized in section 2511(2)(a) or 2517 
     of this title;
       (ii) with the lawful consent of the originator or any 
     addressee or intended recipient of such communication;
       (iii) to a person employed or authorized, or whose 
     facilities are used, to forward such communication to its 
     destination; or
       (iv) which were inadvertently obtained by the service 
     provider and which appear to pertain to the commission of a 
     crime, if such divulgence is made to a law enforcement 
     agency.

[[Page 4369]]

       (4)(a) Except as provided in paragraph (b) of this 
     subsection or in subsection (5), whoever violates subsection 
     (1) of this section shall be fined under this title or 
     imprisoned not more than five years, or both.
       (b) Conduct otherwise an offense under this subsection that 
     consists of or relates to the interception of a satellite 
     transmission that is not encrypted or scrambled and that is 
     transmitted--
       (i) to a broadcasting station for purposes of 
     retransmission to the general public; or
       (ii) as an audio subcarrier intended for redistribution to 
     facilities open to the public, but not including data 
     transmissions or telephone calls,

     is not an offense under this subsection unless the conduct is 
     for the purposes of direct or indirect commercial advantage 
     or private financial gain.
       [(c) Redesignated (b)]
       (5)(a)(i) If the communication is--
       (A) a private satellite video communication that is not 
     scrambled or encrypted and the conduct in violation of this 
     chapter is the private viewing of that communication and is 
     not for a tortious or illegal purpose or for purposes of 
     direct or indirect commercial advantage or private commercial 
     gain; or
       (B) a radio communication that is transmitted on 
     frequencies allocated under subpart D of part 74 of the rules 
     of the Federal Communications Commission that is not 
     scrambled or encrypted and the conduct in violation of this 
     chapter is not for a tortious or illegal purpose or for 
     purposes of direct or indirect commercial advantage or 
     private commercial gain,

     then the person who engages in such conduct shall be subject 
     to suit by the Federal Government in a court of competent 
     jurisdiction.
       (ii) In an action under this subsection--
       (A) if the violation of this chapter is a first offense for 
     the person under paragraph (a) of subsection (4) and such 
     person has not been found liable in a civil action under 
     section 2520 of this title, the Federal Government shall be 
     entitled to appropriate injunctive relief; and
       (B) if the violation of this chapter is a second or 
     subsequent offense under paragraph (a) of subsection (4) or 
     such person has been found liable in any prior civil action 
     under section 2520, the person shall be subject to a 
     mandatory $500 civil fine.
       (b) The court may use any means within its authority to 
     enforce an injunction issued under paragraph (ii)(A), and 
     shall impose a civil fine of not less than $500 for each 
     violation of such an injunction.


                               credit(s)

       (Added Pub. L. 90-351, Title III, Sec. 802, June 19, 1968, 
     82 Stat. 213, and amended Pub. L. 91-358, Title II, 
     Sec. 211(a), July 29, 1970, 84 Stat. 654; Pub. L. 95-511, 
     Title II, Sec. 201(a) to (c), Oct. 25, 1978, 92 Stat. 1796, 
     1797; Pub. L. 98-549, Sec. 6(b)(2), Oct. 30, 1984, 98 Stat. 
     2804; Pub. L. 99-508, Title I, Sec. 101(b), (c)(l), (5), (6), 
     (d), (t), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853; Pub. L. 
     103-322, Title XXXII, Sec. 320901, Title XXXIII, 
     Sec. 330016(1)(f)(G), Sept. 13, 1994, 108 Stat. 2123, 2147; 
     Pub. L. 103-414, Title II, Sec. 202(b), 204, 205, Oct. 25, 
     1994, 108 Stat. 4290, 4291; Pub. L. 104-294, Title VI, 
     Sec. 604(b)(42), Oct. 11, 1996, 110 Stat. 3509; Pub. L. 107-
     56, Title II, Sec. Sec. 204, 217(2), Oct. 26, 2001, 115 Stat. 
     281, 291; Pub. L. 107-296, Title II, Sec. 225(h)(2), Nov. 25, 
     2002, 116 Stat. 2158.)
       Current through P.L. 110-195 (excluding P.L. 110-181) 
     approved 3-12-08

  Simply put, the phone companies have immunity. The only issue is, do 
they get their day in court to tell a judge that they have immunity? 
This bill allows for that.
  I think the phone companies, like any other party, have a right to 
assert their defenses and be heard by a judge and have their case be 
heard. This bill provides for that.
  Now, why wouldn't the Bush administration be supportive?
  I think the administration is more concerned about their liability 
than the phone companies.
  Mr. HASTINGS of Washington. Mr. Speaker, I continue to reserve my 
time.
  Mr. ARCURI. Mr. Speaker, I am prepared to close. We have no further 
speakers on our side.
  Mr. HASTINGS of Washington. Mr. Speaker, how much time do I have?
  The SPEAKER pro tempore. The gentleman from Washington has 8\1/4\ 
minutes.
  Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance 
of the time.
  Mr. Speaker, earlier in this debate I put into the Record the January 
28 letter from the 21 Blue Dog Democrats to Speaker Pelosi in support 
of the bipartisan Senate bill. And I'd like to quote from that letter, 
Mr. Speaker:
  ``Following the Senate's passage of a FISA bill, it will be necessary 
for the House to quickly consider FISA legislation to get a bill to the 
President before the Protect America Act expires in February.''
  Mr. Speaker, the Protect America Act has expired, as has the entire 
month of February. But House Democrat leaders have not acted, as these 
21 Blue Dog Democrats have asked, on our national security needs.
  I will quote again from the Blue Dog Democrat letter: ``We have it 
within our ability to replace the expiring Protect America Act by 
passing strong bipartisan FISA modernization legislation that can be 
signed into law, and we should do so. The consequences of not passing 
such a measure would place our national security at undue risk.''
  I regret to say, Mr. Speaker, that for 27 days, our country's 
national security has been put at undue risk because FISA legislation 
has not been passed because the Democrat leaders are blocking the House 
from voting, from even voting on the Senate proposal that passed the 
Senate by a 68-29 vote.
  So let me be very clear about what I'm talking about when I'm going 
to ask my colleagues to vote ``no'' on the previous question, and why 
that will be an attempt, or will be a means, by which we can address 
the Senate bill for the first time in this body, because this, what I'm 
going to do, is not an ordinary motion.
  By voting ``no,'' Mr. Speaker, on the previous question, I will seek 
to amend one specific clause of the rule, H. Res. 1041, so that the 
House will still be permitted to debate the FISA bill that this 
underlying rule makes in order; but if that bill, and if that proposal 
does not pass this body, then the House, under the provision that I'm 
seeking to amend the rule, will agree to the Senate bill; and, 
therefore, the bill would be sent to the President to become law.
  Mr. Speaker, I ask unanimous consent to have the text of the 
amendment and extraneous material inserted into the Record prior to the 
vote on the previous question.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Washington?
  There was no objection.
  Mr. HASTINGS of Washington. Now let me just review where we are on 
this, just to put this into a time frame. The Protect America Act was 
first put into place last August, set to expire in February so they 
could work out the differences.
  Now, the Senate had their proposal, as I mentioned, and as has been 
mentioned by our leader, passed by a big margin, 68-29.
  The House has their version. There's nothing unusual with both Houses 
in a bicameral legislative body having two versions of the same issue. 
And the way you generally resolve that is to go to conference and work 
out the difference.
  We have not had the opportunity, in this body, to go to conference 
with the Senate on this bill. Further, we have been denied time and 
time again to have an opportunity to even vote on the Senate 
amendments. By defeating the previous question, we will have that 
opportunity.
  So I urge my colleagues to vote to defeat the previous question so we 
can amend the rule to have an opportunity to vote and address the 
Senate bill that passed overwhelmingly.
  Mr. Speaker, I yield back the balance of my time.
  Mr. ARCURI. Mr. Speaker, as I said earlier, we must bring the 
misinformation campaign and partisan wrangling to an end.
  There is no question that there are groups and individuals out there 
who would seek to do America harm. There is no question that my 
colleagues and I want to give the people who protect us from the danger 
every tool they need to fight terrorism.
  The proposal we will vote on today will, in fact, provide our 
Nation's Intelligence Community with the resources to prevent future 
acts of terrorism, while protecting the freedoms of our citizens under 
the Constitution.
  I strongly urge a ``yes'' vote on the previous question and on the 
rule.
  The material previously referred to by Mr. Hastings of Washington is 
as follows:

    Amendment to H. Res. 1041 Offered by Mr. Hastings of Washington

       Strike section 2 and insert in lieu thereof the following:

[[Page 4370]]

       ``Sec. 2. Upon rejection of the motion to concur specified 
     in section 1, a motion that the House concur in the Senate 
     amendmemt to H.R. 3773 is hereby adopted.''.
       (The information contained herein was provided by 
     Democratic Minority on multiple occasions throughout the 
     l09th Congress.)

        The Vote on the Previous Question: What It Really Means

       This vote, the vote on whether to order the previous 
     question on a special rule, is not merely a procedural vote. 
     A vote against ordering the previous question is a vote 
     against the Democratic majority agenda and a vote to allow 
     the opposition, at least for the moment, to offer an 
     alternative plan. It is a vote about what the House should be 
     debating.
       Mr. Clarence Cannon's Precedents of the House of 
     Representatives, (VI, 308-311) describes the vote on the 
     previous question on the rule as ``a motion to direct or 
     control the consideration of the subject before the House 
     being made by the Member in charge.'' To defeat the previous 
     question is to give the opposition a chance to decide the 
     subject before the House. Cannon cites the Speaker's ruling 
     of January 13, 1920, to the effect that ``the refusal of the 
     House to sustain the demand for the previous question passes 
     the control of the resolution to the opposition'' in order to 
     offer an amendment. On March 15, 1909, a member of the 
     majority party offered a rule resolution. The House defeated 
     the previous question and a member of the opposition rose to 
     a parliamentary inquiry, asking who was entitled to 
     recognition. Speaker Joseph G. Cannon (R-Illinois) said: 
     ``The previous question having been refused, the gentleman 
     from New York, Mr. Fitzgerald, who had asked the gentleman to 
     yield to him for an amendment, is entitled to the first 
     recognition.''
       Because the vote today may look bad for the Democratic 
     majority they will say ``the vote on the previous question is 
     simply a vote on whether to proceed to an immediate vote on 
     adopting the resolution . . . . . [and] has no substantive 
     legislative or policy implications whatsoever.'' But that is 
     not what they have always said. Listen to the definition of 
     the previous question used in the Floor Procedures Manual 
     published by the Rules Committee in the 109th Congress, (page 
     56). Here's how the Rules Committee described the rule using 
     information from Congressional Quarterly's ``American 
     Congressional Dictionary'': ``If the previous question is 
     defeated, control of debate shifts to the leading opposition 
     member (usually the minority Floor Manager) who then manages 
     an hour of debate and may offer a germane amendment to the 
     pending business.''
       Deschler's Procedure in the U.S. House of Representatives, 
     the subchapter titled ``Amending Special Rules'' states: ``a 
     refusal to order the previous question on such a rule [a 
     special rule reported from the Committee on Rules] opens the 
     resolution to amendment and further debate.'' (Chapter 21, 
     section 21.2) Section 21.3 continues: Upon rejection of the 
     motion for the previous question on a resolution reported 
     from the Committee on Rules, control shifts to the Member 
     leading the opposition to the previous question, who may 
     offer a proper amendment or motion and who controls the time 
     for debate thereon.''
       Clearly, the vote on the previous question on a rule does 
     have substantive policy implications. It is one of the only 
     available tools for those who oppose the Democratic 
     majority's agenda and allows those with alternative views the 
     opportunity to offer an alternative plan.

  Mr. ARCURI. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The SPEAKER pro tempore. The question is on ordering the previous 
question
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. HASTINGS of Washington. Mr. Speaker, I object to the vote on the 
ground that a quorum is not present and make the point of order that a 
quorum is not present.
  The SPEAKER pro tempore. Evidently a quorum is not present.
  The Sergeant at Arms will notify absent Members.
  The vote was taken by electronic device, and there were--yeas 217, 
nays 190, not voting 23, as follows:

                             [Roll No. 143]

                               YEAS--217

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carson
     Castor
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Costa
     Costello
     Courtney
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Ellison
     Ellsworth
     Emanuel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Foster
     Frank (MA)
     Giffords
     Gillibrand
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth Sandlin
     Higgins
     Hill
     Hinchey
     Hirono
     Hodes
     Holden
     Holt
     Honda
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson, E. B.
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Klein (FL)
     Kucinich
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Melancon
     Michaud
     Miller (NC)
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Reyes
     Richardson
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tanner
     Tauscher
     Taylor
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Tsongas
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wilson (OH)
     Wu
     Wynn
     Yarmuth

                               NAYS--190

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Barrett (SC)
     Barrow
     Bartlett (MD)
     Barton (TX)
     Bean
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono Mack
     Boozman
     Brady (TX)
     Broun (GA)
     Brown (SC)
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carney
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Cooper
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Lincoln
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Donnelly
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     Engel
     English (PA)
     Everett
     Fallin
     Feeney
     Ferguson
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Graves
     Hall (TX)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hulshof
     Inglis (SC)
     Issa
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Lampson
     Latham
     LaTourette
     Latta
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy, Tim
     Myrick
     Neugebauer
     Pearce
     Pence
     Petri
     Pitts
     Platts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Saxton
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shays
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Terry
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walberg
     Walden (OR)
     Walsh (NY)
     Wamp
     Weldon (FL)
     Westmoreland
     Whitfield (KY)
     Wilson (NM)
     Wilson (SC)
     Wittman (VA)
     Wolf
     Young (FL)

                             NOT VOTING--23

     Boustany
     Brown-Waite, Ginny
     Cramer
     Cubin
     Gilchrest
     Granger
     Hinojosa
     Hooley
     Hunter
     LaHood
     McMorris Rodgers
     Meeks (NY)
     Musgrave
     Nunes
     Oberstar
     Peterson (PA)
     Pickering
     Rangel
     Rush
     Tancredo
     Weller
     Woolsey
     Young (AK)

                              {time}  1148

  Mr. MANZULLO changed his vote from ``yea'' to ``nay.''

[[Page 4371]]


  Mr. BAIRD changed his vote from ``nay'' to ``yea.''
  Mr. CARSON of Indiana changed his vote from ``present'' to ``yea.''
  So the previous question was ordered.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore. The question is on the resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. HASTINGS of Washington. Mr. Speaker, on that I demand the yeas 
and nays.
  The yeas and nays were ordered.
  The vote was taken by electronic device, and there were--yeas 221, 
nays 188, not voting 21, as follows:

                             [Roll No. 144]

                               YEAS--221

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson
     Castor
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Costa
     Costello
     Courtney
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis, Lincoln
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Donnelly
     Doyle
     Edwards
     Ellison
     Ellsworth
     Emanuel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Foster
     Frank (MA)
     Giffords
     Gillibrand
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth Sandlin
     Higgins
     Hill
     Hinchey
     Hirono
     Hodes
     Holden
     Holt
     Honda
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson, E. B.
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Klein (FL)
     Kucinich
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Melancon
     Michaud
     Miller (NC)
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Reyes
     Richardson
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shea-Porter
     Sherman
     Shuler
     Sires
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tanner
     Tauscher
     Taylor
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Tsongas
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Welch (VT)
     Wexler
     Wilson (OH)
     Wu
     Wynn
     Yarmuth

                               NAYS--188

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono Mack
     Boozman
     Brady (TX)
     Broun (GA)
     Brown (SC)
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Cooper
     Crenshaw
     Culberson
     Davis (KY)
     Davis, David
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     Engel
     English (PA)
     Everett
     Fallin
     Feeney
     Ferguson
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Hall (TX)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hulshof
     Inglis (SC)
     Issa
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kuhl (NY)
     Lamborn
     Lampson
     Latham
     LaTourette
     Latta
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy, Tim
     Myrick
     Neugebauer
     Paul
     Pearce
     Pence
     Petri
     Pitts
     Platts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Saxton
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shays
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Terry
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walberg
     Walden (OR)
     Walsh (NY)
     Wamp
     Weldon (FL)
     Westmoreland
     Whitfield (KY)
     Wilson (NM)
     Wilson (SC)
     Wittman (VA)
     Wolf
     Young (FL)

                             NOT VOTING--21

     Boustany
     Brown-Waite, Ginny
     Cramer
     Cubin
     Gilchrest
     Hinojosa
     Hooley
     Hunter
     LaHood
     Meeks (NY)
     Musgrave
     Nunes
     Oberstar
     Peterson (PA)
     Pickering
     Rangel
     Rush
     Tancredo
     Weller
     Woolsey
     Young (AK)

                              {time}  1205

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


                          Personal explanation

  Mr. HINOJOSA. Mr. Speaker, on rollcall Nos. 143 and 144, I was 
unavoidably detained. Had I been present, I would have voted ``yea'' on 
rollcall Nos. 143 and 144.
  Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 1041, I call 
up the bill (H.R. 3773) to amend the Foreign Intelligence Surveillance 
Act of 1978 to establish a procedure for authorizing certain 
acquisitions of foreign intelligence, and for other purposes, with a 
Senate amendment thereto, and ask for its immediate consideration in 
the House.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore (Mr. Ross). The Clerk will designate the 
Senate amendment.
  The text of the Senate amendment is as follows:

       Senate amendment:
       Strike out all after the enacting clause and insert:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Foreign 
     Intelligence Surveillance Act of 1978 Amendments Act of 
     2008'' or the ``FISA Amendments Act of 2008''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

Sec. 101. Additional procedures regarding certain persons outside the 
              United States.
Sec. 102. Statement of exclusive means by which electronic surveillance 
              and interception of domestic communications may be 
              conducted.
Sec. 103. Submittal to Congress of certain court orders under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace 
              devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication 
              service providers.
Sec. 203. Procedures for implementing statutory defenses under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.

                      TITLE III--OTHER PROVISIONS

Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

     SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS 
                   OUTSIDE THE UNITED STATES.

       (a) In General.--The Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) is amended--
       (1) by striking title VII; and
       (2) by adding after title VI the following new title:

[[Page 4372]]



 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

     ``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC 
                   SURVEILLANCE.

       ``Nothing in the definition of electronic surveillance 
     under section 101(f) shall be construed to encompass 
     surveillance that is targeted in accordance with this title 
     at a person reasonably believed to be located outside the 
     United States.

     ``SEC. 702. DEFINITIONS.

       ``(a) In General.--The terms `agent of a foreign power', 
     `Attorney General', `contents', `electronic surveillance', 
     `foreign intelligence information', `foreign power', 
     `minimization procedures', `person', `United States', and 
     `United States person' shall have the meanings given such 
     terms in section 101, except as specifically provided in this 
     title.
       ``(b) Additional Definitions.--
       ``(1) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means--
       ``(A) the Select Committee on Intelligence of the Senate; 
     and
       ``(B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(2) Foreign intelligence surveillance court; court.--The 
     terms `Foreign Intelligence Surveillance Court' and `Court' 
     mean the court established by section 103(a).
       ``(3) Foreign intelligence surveillance court of review; 
     court of review.--The terms `Foreign Intelligence 
     Surveillance Court of Review' and `Court of Review' mean the 
     court established by section 103(b).
       ``(4) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored; or
       ``(E) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), or (D).
       ``(5) Element of the intelligence community.--The term 
     `element of the intelligence community' means an element of 
     the intelligence community specified in or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).

     ``SEC. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE 
                   THE UNITED STATES OTHER THAN UNITED STATES 
                   PERSONS.

       ``(a) Authorization.--Notwithstanding any other law, the 
     Attorney General and the Director of National Intelligence 
     may authorize jointly, for periods of up to 1 year, the 
     targeting of persons reasonably believed to be located 
     outside the United States to acquire foreign intelligence 
     information.
       ``(b) Limitations.--An acquisition authorized under 
     subsection (a)--
       ``(1) may not intentionally target any person known at the 
     time of acquisition to be located in the United States;
       ``(2) may not intentionally target a person reasonably 
     believed to be located outside the United States if the 
     purpose of such acquisition is to target a particular, known 
     person reasonably believed to be in the United States, except 
     in accordance with title I or title III;
       ``(3) may not intentionally target a United States person 
     reasonably believed to be located outside the United States, 
     except in accordance with sections 704, 705, or 706;
       ``(4) shall not intentionally acquire any communication as 
     to which the sender and all intended recipients are known at 
     the time of the acquisition to be located in the United 
     States; and
       ``(5) shall be conducted in a manner consistent with the 
     fourth amendment to the Constitution of the United States.
       ``(c) Conduct of Acquisition.--An acquisition authorized 
     under subsection (a) may be conducted only in accordance 
     with--
       ``(1) a certification made by the Attorney General and the 
     Director of National Intelligence pursuant to subsection (f); 
     and
       ``(2) the targeting and minimization procedures required 
     pursuant to subsections (d) and (e).
       ``(d) Targeting Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt targeting procedures that are reasonably designed 
     to ensure that any acquisition authorized under subsection 
     (a) is limited to targeting persons reasonably believed to be 
     located outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(2) Judicial review.--The procedures referred to in 
     paragraph (1) shall be subject to judicial review pursuant to 
     subsection (h).
       ``(e) Minimization Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt minimization procedures that meet the definition 
     of minimization procedures under section 101(h) or section 
     301(4) for acquisitions authorized under subsection (a).
       ``(2) Judicial review.--The minimization procedures 
     required by this subsection shall be subject to judicial 
     review pursuant to subsection (h).
       ``(f) Certification.--
       ``(1) In general.--
       ``(A) Requirement.--Subject to subparagraph (B), prior to 
     the initiation of an acquisition authorized under subsection 
     (a), the Attorney General and the Director of National 
     Intelligence shall provide, under oath, a written 
     certification, as described in this subsection.
       ``(B) Exception.--If the Attorney General and the Director 
     of National Intelligence determine that immediate action by 
     the Government is required and time does not permit the 
     preparation of a certification under this subsection prior to 
     the initiation of an acquisition, the Attorney General and 
     the Director of National Intelligence shall prepare such 
     certification, including such determination, as soon as 
     possible but in no event more than 7 days after such 
     determination is made.
       ``(2) Requirements.--A certification made under this 
     subsection shall--
       ``(A) attest that--
       ``(i) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) is targeted at persons reasonably believed to be located 
     outside the United States and that such procedures have been 
     approved by, or will be submitted in not more than 5 days for 
     approval by, the Foreign Intelligence Surveillance Court 
     pursuant to subsection (h);
       ``(ii) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) does not result in the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States, and that such procedures have 
     been approved by, or will be submitted in not more than 5 
     days for approval by, the Foreign Intelligence Surveillance 
     Court pursuant to subsection (h);
       ``(iii) the procedures referred to in clauses (i) and (ii) 
     are consistent with the requirements of the fourth amendment 
     to the Constitution of the United States and do not permit 
     the intentional targeting of any person who is known at the 
     time of acquisition to be located in the United States or the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     acquisition to be located in the United States;
       ``(iv) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(v) the minimization procedures to be used with respect 
     to such acquisition--

       ``(I) meet the definition of minimization procedures under 
     section 101(h) or section 301(4); and
       ``(II) have been approved by, or will be submitted in not 
     more than 5 days for approval by, the Foreign Intelligence 
     Surveillance Court pursuant to subsection (h);

       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition does not constitute electronic 
     surveillance, as limited by section 701; and
       ``(B) be supported, as appropriate, by the affidavit of any 
     appropriate official in the area of national security who 
     is--
       ``(i) appointed by the President, by and with the consent 
     of the Senate; or
       ``(ii) the head of any element of the intelligence 
     community.
       ``(3) Limitation.--A certification made under this 
     subsection is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition authorized under subsection (a) will be directed 
     or conducted.
       ``(4) Submission to the court.--The Attorney General shall 
     transmit a copy of a certification made under this 
     subsection, and any supporting affidavit, under seal to the 
     Foreign Intelligence Surveillance Court as soon as possible, 
     but in no event more than 5 days after such certification is 
     made. Such certification shall be maintained under security 
     measures adopted by the Chief Justice of the United States 
     and the Attorney General, in consultation with the Director 
     of National Intelligence.
       ``(5) Review.--The certification required by this 
     subsection shall be subject to judicial review pursuant to 
     subsection (h).
       ``(g) Directives and Judicial Review of Directives.--
       ``(1) Authority.--With respect to an acquisition authorized 
     under subsection (a), the Attorney General and the Director 
     of National Intelligence may direct, in writing, an 
     electronic communication service provider to--
       ``(A) immediately provide the Government with all 
     information, facilities, or assistance necessary to 
     accomplish the acquisition in a manner that will protect the 
     secrecy of the acquisition and produce a minimum of 
     interference with the services that such electronic 
     communication service provider is providing to the target; 
     and
       ``(B) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the acquisition or the aid furnished 
     that such electronic communication service provider wishes to 
     maintain.
       ``(2) Compensation.--The Government shall compensate, at 
     the prevailing rate, an electronic communication service 
     provider for providing information, facilities, or assistance 
     pursuant to paragraph (1).

[[Page 4373]]

       ``(3) Release from liability.--Notwithstanding any other 
     law, no cause of action shall lie in any court against any 
     electronic communication service provider for providing any 
     information, facilities, or assistance in accordance with a 
     directive issued pursuant to paragraph (1).
       ``(4) Challenging of directives.--
       ``(A) Authority to challenge.--An electronic communication 
     service provider receiving a directive issued pursuant to 
     paragraph (1) may challenge the directive by filing a 
     petition with the Foreign Intelligence Surveillance Court, 
     which shall have jurisdiction to review such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign the petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Standards for review.--A judge considering a petition 
     to modify or set aside a directive may grant such petition 
     only if the judge finds that the directive does not meet the 
     requirements of this section, or is otherwise unlawful.
       ``(D) Procedures for initial review.--A judge shall conduct 
     an initial review not later than 5 days after being assigned 
     a petition described in subparagraph (C). If the judge 
     determines that the petition consists of claims, defenses, or 
     other legal contentions that are not warranted by existing 
     law or by a nonfrivolous argument for extending, modifying, 
     or reversing existing law or for establishing new law, the 
     judge shall immediately deny the petition and affirm the 
     directive or any part of the directive that is the subject of 
     the petition and order the recipient to comply with the 
     directive or any part of it. Upon making such a determination 
     or promptly thereafter, the judge shall provide a written 
     statement for the record of the reasons for a determination 
     under this subparagraph.
       ``(E) Procedures for plenary review.--If a judge determines 
     that a petition described in subparagraph (C) requires 
     plenary review, the judge shall affirm, modify, or set aside 
     the directive that is the subject of that petition not later 
     than 30 days after being assigned the petition, unless the 
     judge, by order for reasons stated, extends that time as 
     necessary to comport with the due process clause of the fifth 
     amendment to the Constitution of the United States. Unless 
     the judge sets aside the directive, the judge shall 
     immediately affirm or affirm with modifications the 
     directive, and order the recipient to comply with the 
     directive in its entirety or as modified. The judge shall 
     provide a written statement for the records of the reasons 
     for a determination under this subparagraph.
       ``(F) Continued effect.--Any directive not explicitly 
     modified or set aside under this paragraph shall remain in 
     full effect.
       ``(G) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(5) Enforcement of directives.--
       ``(A) Order to compel.--In the case of a failure to comply 
     with a directive issued pursuant to paragraph (1), the 
     Attorney General may file a petition for an order to compel 
     compliance with the directive with the Foreign Intelligence 
     Surveillance Court, which shall have jurisdiction to review 
     such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign a petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Standards for review.--A judge considering a petition 
     filed under subparagraph (A) shall issue an order requiring 
     the electronic communication service provider to comply with 
     the directive or any part of it, as issued or as modified, if 
     the judge finds that the directive meets the requirements of 
     this section, and is otherwise lawful.
       ``(D) Procedures for review.--The judge shall render a 
     determination not later than 30 days after being assigned a 
     petition filed under subparagraph (A), unless the judge, by 
     order for reasons stated, extends that time if necessary to 
     comport with the due process clause of the fifth amendment to 
     the Constitution of the United States. The judge shall 
     provide a written statement for the record of the reasons for 
     a determination under this paragraph.
       ``(E) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(F) Process.--Any process under this paragraph may be 
     served in any judicial district in which the electronic 
     communication service provider may be found.
       ``(6) Appeal.--
       ``(A) Appeal to the court of review.--The Government or an 
     electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition with the Foreign Intelligence Surveillance Court of 
     Review for review of the decision issued pursuant to 
     paragraph (4) or (5). The Court of Review shall have 
     jurisdiction to consider such a petition and shall provide a 
     written statement for the record of the reasons for a 
     decision under this paragraph.
       ``(B) Certiorari to the supreme court.--The Government or 
     an electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition for a writ of certiorari for review of the decision 
     of the Court of Review issued under subparagraph (A). The 
     record for such review shall be transmitted under seal to the 
     Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.
       ``(h) Judicial Review of Certifications and Procedures.--
       ``(1) In general.--
       ``(A) Review by the foreign intelligence surveillance 
     court.--The Foreign Intelligence Surveillance Court shall 
     have jurisdiction to review any certification required by 
     subsection (c) and the targeting and minimization procedures 
     adopted pursuant to subsections (d) and (e).
       ``(B) Submission to the court.--The Attorney General shall 
     submit to the Court any such certification or procedure, or 
     amendment thereto, not later than 5 days after making or 
     amending the certification or adopting or amending the 
     procedures.
       ``(2) Certifications.--The Court shall review a 
     certification provided under subsection (f) to determine 
     whether the certification contains all the required elements.
       ``(3) Targeting procedures.--The Court shall review the 
     targeting procedures required by subsection (d) to assess 
     whether the procedures are reasonably designed to ensure that 
     the acquisition authorized under subsection (a) is limited to 
     the targeting of persons reasonably believed to be located 
     outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(4) Minimization procedures.--The Court shall review the 
     minimization procedures required by subsection (e) to assess 
     whether such procedures meet the definition of minimization 
     procedures under section 101(h) or section 301(4).
       ``(5) Orders.--
       ``(A) Approval.--If the Court finds that a certification 
     required by subsection (f) contains all of the required 
     elements and that the targeting and minimization procedures 
     required by subsections (d) and (e) are consistent with the 
     requirements of those subsections and with the fourth 
     amendment to the Constitution of the United States, the Court 
     shall enter an order approving the continued use of the 
     procedures for the acquisition authorized under subsection 
     (a).
       ``(B) Correction of deficiencies.--If the Court finds that 
     a certification required by subsection (f) does not contain 
     all of the required elements, or that the procedures required 
     by subsections (d) and (e) are not consistent with the 
     requirements of those subsections or the fourth amendment to 
     the Constitution of the United States, the Court shall issue 
     an order directing the Government to, at the Government's 
     election and to the extent required by the Court's order--
       ``(i) correct any deficiency identified by the Court's 
     order not later than 30 days after the date the Court issues 
     the order; or
       ``(ii) cease the acquisition authorized under subsection 
     (a).
       ``(C) Requirement for written statement.--In support of its 
     orders under this subsection, the Court shall provide, 
     simultaneously with the orders, for the record a written 
     statement of its reasons.
       ``(6) Appeal.--
       ``(A) Appeal to the court of review.--The Government may 
     appeal any order under this section to the Foreign 
     Intelligence Surveillance Court of Review, which shall have 
     jurisdiction to review such order. For any decision 
     affirming, reversing, or modifying an order of the Foreign 
     Intelligence Surveillance Court, the Court of Review shall 
     provide for the record a written statement of its reasons.
       ``(B) Continuation of acquisition pending rehearing or 
     appeal.--Any acquisitions affected by an order under 
     paragraph (5)(B) may continue--
       ``(i) during the pendency of any rehearing of the order by 
     the Court en banc; and
       ``(ii) if the Government appeals an order under this 
     section, until the Court of Review enters an order under 
     subparagraph (C).
       ``(C) Implementation pending appeal.--Not later than 60 
     days after the filing of an appeal of an order under 
     paragraph (5)(B) directing the correction of a deficiency, 
     the Court of Review shall determine, and enter a 
     corresponding order regarding, whether all or any part of the 
     correction order, as issued or modified, shall be implemented 
     during the pendency of the appeal.
       ``(D) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of a 
     decision of the Court of Review issued under subparagraph 
     (A). The record for such review shall be transmitted under 
     seal to the Supreme Court of the United States, which shall 
     have jurisdiction to review such decision.
       ``(i) Expedited Judicial Proceedings.--Judicial proceedings 
     under this section shall be conducted as expeditiously as 
     possible.
       ``(j) Maintenance and Security of Records and 
     Proceedings.--
       ``(1) Standards.--A record of a proceeding under this 
     section, including petitions filed, orders granted, and 
     statements of reasons for decision, shall be maintained under 
     security measures adopted by the Chief Justice of the United 
     States, in consultation with the Attorney General and the 
     Director of National Intelligence.
       ``(2) Filing and review.--All petitions under this section 
     shall be filed under seal. In any proceedings under this 
     section, the court shall, upon request of the Government, 
     review ex parte and in camera any Government submission, or 
     portions of a submission, which may include classified 
     information.

[[Page 4374]]

       ``(3) Retention of records.--A directive made or an order 
     granted under this section shall be retained for a period of 
     not less than 10 years from the date on which such directive 
     or such order is made.
       ``(k) Assessments and Reviews.--
       ``(1) Semiannual assessment.--Not less frequently than once 
     every 6 months, the Attorney General and Director of National 
     Intelligence shall assess compliance with the targeting and 
     minimization procedures required by subsections (e) and (f) 
     and shall submit each such assessment to--
       ``(A) the Foreign Intelligence Surveillance Court; and
       ``(B) the congressional intelligence committees.
       ``(2) Agency assessment.--The Inspectors General of the 
     Department of Justice and of any element of the intelligence 
     community authorized to acquire foreign intelligence 
     information under subsection (a) with respect to their 
     department, agency, or element--
       ``(A) are authorized to review the compliance with the 
     targeting and minimization procedures required by subsections 
     (d) and (e);
       ``(B) with respect to acquisitions authorized under 
     subsection (a), shall review the number of disseminated 
     intelligence reports containing a reference to a United 
     States person identity and the number of United States person 
     identities subsequently disseminated by the element concerned 
     in response to requests for identities that were not referred 
     to by name or title in the original reporting;
       ``(C) with respect to acquisitions authorized under 
     subsection (a), shall review the number of targets that were 
     later determined to be located in the United States and, to 
     the extent possible, whether their communications were 
     reviewed; and
       ``(D) shall provide each such review to--
       ``(i) the Attorney General;
       ``(ii) the Director of National Intelligence; and
       ``(iii) the congressional intelligence committees.
       ``(3) Annual review.--
       ``(A) Requirement to conduct.--The head of an element of 
     the intelligence community conducting an acquisition 
     authorized under subsection (a) shall direct the element to 
     conduct an annual review to determine whether there is reason 
     to believe that foreign intelligence information has been or 
     will be obtained from the acquisition. The annual review 
     shall provide, with respect to such acquisitions authorized 
     under subsection (a)--
       ``(i) an accounting of the number of disseminated 
     intelligence reports containing a reference to a United 
     States person identity;
       ``(ii) an accounting of the number of United States person 
     identities subsequently disseminated by that element in 
     response to requests for identities that were not referred to 
     by name or title in the original reporting;
       ``(iii) the number of targets that were later determined to 
     be located in the United States and, to the extent possible, 
     whether their communications were reviewed; and
       ``(iv) a description of any procedures developed by the 
     head of an element of the intelligence community and approved 
     by the Director of National Intelligence to assess, in a 
     manner consistent with national security, operational 
     requirements and the privacy interests of United States 
     persons, the extent to which the acquisitions authorized 
     under subsection (a) acquire the communications of United 
     States persons, as well as the results of any such 
     assessment.
       ``(B) Use of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall use each such review to evaluate the 
     adequacy of the minimization procedures utilized by such 
     element or the application of the minimization procedures to 
     a particular acquisition authorized under subsection (a).
       ``(C) Provision of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall provide such review to--
       ``(i) the Foreign Intelligence Surveillance Court;
       ``(ii) the Attorney General;
       ``(iii) the Director of National Intelligence; and
       ``(iv) the congressional intelligence committees.

     ``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF 
                   UNITED STATES PERSONS OUTSIDE THE UNITED 
                   STATES.

       ``(a) Jurisdiction of the Foreign Intelligence Surveillance 
     Court.--
       ``(1) In general.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order approving the 
     targeting of a United States person reasonably believed to be 
     located outside the United States to acquire foreign 
     intelligence information, if such acquisition constitutes 
     electronic surveillance (as defined in section 101(f), 
     regardless of the limitation of section 701) or the 
     acquisition of stored electronic communications or stored 
     electronic data that requires an order under this Act, and 
     such acquisition is conducted within the United States.
       ``(2) Limitation.--In the event that a United States person 
     targeted under this subsection is reasonably believed to be 
     located in the United States during the pendency of an order 
     issued pursuant to subsection (c), such acquisition shall 
     cease until authority, other than under this section, is 
     obtained pursuant to this Act or the targeted United States 
     person is again reasonably believed to be located outside the 
     United States during the pendency of an order issued pursuant 
     to subsection (c).
       ``(b) Application.--
       ``(1) In general.--Each application for an order under this 
     section shall be made by a Federal officer in writing upon 
     oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application, as set forth in this 
     section, and shall include--
       ``(A) the identity of the Federal officer making the 
     application;
       ``(B) the identity, if known, or a description of the 
     United States person who is the target of the acquisition;
       ``(C) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(D) a statement of the proposed minimization procedures 
     that meet the definition of minimization procedures under 
     section 101(h) or section 301(4);
       ``(E) a description of the nature of the information sought 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(F) a certification made by the Attorney General or an 
     official specified in section 104(a)(6) that--
       ``(i) the certifying official deems the information sought 
     to be foreign intelligence information;
       ``(ii) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(iii) such information cannot reasonably be obtained by 
     normal investigative techniques;
       ``(iv) designates the type of foreign intelligence 
     information being sought according to the categories 
     described in section 101(e); and
       ``(v) includes a statement of the basis for the 
     certification that--

       ``(I) the information sought is the type of foreign 
     intelligence information designated; and
       ``(II) such information cannot reasonably be obtained by 
     normal investigative techniques;

       ``(G) a summary statement of the means by which the 
     acquisition will be conducted and whether physical entry is 
     required to effect the acquisition;
       ``(H) the identity of any electronic communication service 
     provider necessary to effect the acquisition, provided, 
     however, that the application is not required to identify the 
     specific facilities, places, premises, or property at which 
     the acquisition authorized under this section will be 
     directed or conducted;
       ``(I) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(J) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(2) Other requirements of the attorney general.--The 
     Attorney General may require any other affidavit or 
     certification from any other officer in connection with the 
     application.
       ``(3) Other requirements of the judge.--The judge may 
     require the applicant to furnish such other information as 
     may be necessary to make the findings required by subsection 
     (c)(1).
       ``(c) Order.--
       ``(1) Findings.--Upon an application made pursuant to 
     subsection (b), the Foreign Intelligence Surveillance Court 
     shall enter an ex parte order as requested or as modified 
     approving the acquisition if the Court finds that--
       ``(A) the application has been made by a Federal officer 
     and approved by the Attorney General;
       ``(B) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(C) the proposed minimization procedures meet the 
     definition of minimization procedures under section 101(h) or 
     section 301(4); and
       ``(D) the application which has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification or certifications are not clearly erroneous 
     on the basis of the statement made under subsection 
     (b)(1)(F)(v) and any other information furnished under 
     subsection (b)(3).
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under 
     paragraph (1), a judge having jurisdiction under subsection 
     (a)(1) may consider past activities of the target, as well as 
     facts and circumstances relating to current or future 
     activities of the target. However, no United States person 
     may be considered a foreign power, agent of a foreign power, 
     or officer or employee of a foreign power solely upon the 
     basis of activities protected by the first amendment to the 
     Constitution of the United States.
       ``(3) Review.--
       ``(A) Limitation on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1).
       ``(B) Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause to issue an order 
     under paragraph

[[Page 4375]]

     (1), the judge shall enter an order so stating and provide a 
     written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (f).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the proposed minimization procedures required 
     under paragraph (1)(C) do not meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (f).
       ``(D) Review of certification.--If the judge determines 
     that an application required by subsection (b) does not 
     contain all of the required elements, or that the 
     certification or certifications are clearly erroneous on the 
     basis of the statement made under subsection (b)(1)(F)(v) and 
     any other information furnished under subsection (b)(3), the 
     judge shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (f).
       ``(4) Specifications.--An order approving an acquisition 
     under this subsection shall specify--
       ``(A) the identity, if known, or a description of the 
     United States person who is the target of the acquisition 
     identified or described in the application pursuant to 
     subsection (b)(1)(B);
       ``(B) if provided in the application pursuant to subsection 
     (b)(1)(H), the nature and location of each of the facilities 
     or places at which the acquisition will be directed;
       ``(C) the nature of the information sought to be acquired 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(D) the means by which the acquisition will be conducted 
     and whether physical entry is required to effect the 
     acquisition; and
       ``(E) the period of time during which the acquisition is 
     approved.
       ``(5) Directions.--An order approving acquisitions under 
     this subsection shall direct--
       ``(A) that the minimization procedures be followed;
       ``(B) an electronic communication service provider to 
     provide to the Government forthwith all information, 
     facilities, or assistance necessary to accomplish the 
     acquisition authorized under this subsection in a manner that 
     will protect the secrecy of the acquisition and produce a 
     minimum of interference with the services that such 
     electronic communication service provider is providing to the 
     target;
       ``(C) an electronic communication service provider to 
     maintain under security procedures approved by the Attorney 
     General any records concerning the acquisition or the aid 
     furnished that such electronic communication service provider 
     wishes to maintain; and
       ``(D) that the Government compensate, at the prevailing 
     rate, such electronic communication service provider for 
     providing such information, facilities, or assistance.
       ``(6) Duration.--An order approved under this paragraph 
     shall be effective for a period not to exceed 90 days and 
     such order may be renewed for additional 90-day periods upon 
     submission of renewal applications meeting the requirements 
     of subsection (b).
       ``(7) Compliance.--At or prior to the end of the period of 
     time for which an acquisition is approved by an order or 
     extension under this section, the judge may assess compliance 
     with the minimization procedures by reviewing the 
     circumstances under which information concerning United 
     States persons was acquired, retained, or disseminated.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision of this Act, if the 
     Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     authorizing such acquisition can with due diligence be 
     obtained, and
       ``(B) the factual basis for issuance of an order under this 
     subsection to approve such acquisition exists,

     the Attorney General may authorize the emergency acquisition 
     if a judge having jurisdiction under subsection (a)(1) is 
     informed by the Attorney General, or a designee of the 
     Attorney General, at the time of such authorization that the 
     decision has been made to conduct such acquisition and if an 
     application in accordance with this subsection is made to a 
     judge of the Foreign Intelligence Surveillance Court as soon 
     as practicable, but not more than 7 days after the Attorney 
     General authorizes such acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes such emergency acquisition, the Attorney General 
     shall require that the minimization procedures required by 
     this section for the issuance of a judicial order be 
     followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of a judicial order approving such acquisition, the 
     acquisition shall terminate when the information sought is 
     obtained, when the application for the order is denied, or 
     after the expiration of 7 days from the time of authorization 
     by the Attorney General, whichever is earliest.
       ``(4) Use of information.--In the event that such 
     application for approval is denied, or in any other case 
     where the acquisition is terminated and no order is issued 
     approving the acquisition, no information obtained or 
     evidence derived from such acquisition, except under 
     circumstances in which the target of the acquisition is 
     determined not to be a United States person during the 
     pendency of the 7-day emergency acquisition period, shall be 
     received in evidence or otherwise disclosed in any trial, 
     hearing, or other proceeding in or before any court, grand 
     jury, department, office, agency, regulatory body, 
     legislative committee, or other authority of the United 
     States, a State, or political subdivision thereof, and no 
     information concerning any United States person acquired from 
     such acquisition shall subsequently be used or disclosed in 
     any other manner by Federal officers or employees without the 
     consent of such person, except with the approval of the 
     Attorney General if the information indicates a threat of 
     death or serious bodily harm to any person.
       ``(e) Release From Liability.--Notwithstanding any other 
     law, no cause of action shall lie in any court against any 
     electronic communication service provider for providing any 
     information, facilities, or assistance in accordance with an 
     order or request for emergency assistance issued pursuant to 
     subsections (c) or (d).
       ``(f) Appeal.--
       ``(1) Appeal to the foreign intelligence surveillance court 
     of review.--The Government may file an appeal with the 
     Foreign Intelligence Surveillance Court of Review for review 
     of an order issued pursuant to subsection (c). The Court of 
     Review shall have jurisdiction to consider such appeal and 
     shall provide a written statement for the record of the 
     reasons for a decision under this paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of the 
     decision of the Court of Review issued under paragraph (1). 
     The record for such review shall be transmitted under seal to 
     the Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.

     ``SEC. 705. OTHER ACQUISITIONS TARGETING UNITED STATES 
                   PERSONS OUTSIDE THE UNITED STATES.

       ``(a) Jurisdiction and Scope.--
       ``(1) Jurisdiction.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order pursuant to 
     subsection (c).
       ``(2) Scope.--No element of the intelligence community may 
     intentionally target, for the purpose of acquiring foreign 
     intelligence information, a United States person reasonably 
     believed to be located outside the United States under 
     circumstances in which the targeted United States person has 
     a reasonable expectation of privacy and a warrant would be 
     required if the acquisition were conducted inside the United 
     States for law enforcement purposes, unless a judge of the 
     Foreign Intelligence Surveillance Court has entered an order 
     or the Attorney General has authorized an emergency 
     acquisition pursuant to subsections (c) or (d) or any other 
     provision of this Act.
       ``(3) Limitations.--
       ``(A) Moving or misidentified targets.--In the event that 
     the targeted United States person is reasonably believed to 
     be in the United States during the pendency of an order 
     issued pursuant to subsection (c), such acquisition shall 
     cease until authority is obtained pursuant to this Act or the 
     targeted United States person is again reasonably believed to 
     be located outside the United States during the pendency of 
     an order issued pursuant to subsection (c).
       ``(B) Applicability.--If the acquisition is to be conducted 
     inside the United States and could be authorized under 
     section 704, the procedures of section 704 shall apply, 
     unless an order or emergency acquisition authority has been 
     obtained under a provision of this Act other than under this 
     section.
       ``(b) Application.--Each application for an order under 
     this section shall be made by a Federal officer in writing 
     upon oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application as set forth in this section 
     and shall include--
       ``(1) the identity, if known, or a description of the 
     specific United States person who is the target of the 
     acquisition;
       ``(2) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(A) a person reasonably believed to be located outside 
     the United States; and
       ``(B) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(3) a statement of the proposed minimization procedures 
     that meet the definition of minimization procedures under 
     section 101(h) or section 301(4);
       ``(4) a certification made by the Attorney General, an 
     official specified in section 104(a)(6), or the head of an 
     element of the intelligence community that--
       ``(A) the certifying official deems the information sought 
     to be foreign intelligence information; and
       ``(B) a significant purpose of the acquisition is to obtain 
     foreign intelligence information;
       ``(5) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(6) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(c) Order.--

[[Page 4376]]

       ``(1) Findings.--If, upon an application made pursuant to 
     subsection (b), a judge having jurisdiction under subsection 
     (a) finds that--
       ``(A) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(B) the proposed minimization procedures, with respect to 
     their dissemination provisions, meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4); and
       ``(C) the application which has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification provided under subsection (b)(4) is not 
     clearly erroneous on the basis of the information furnished 
     under subsection (b),

     the Court shall issue an ex parte order so stating.
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under 
     paragraph (1)(A), a judge having jurisdiction under 
     subsection (a)(1) may consider past activities of the target, 
     as well as facts and circumstances relating to current or 
     future activities of the target. However, no United States 
     person may be considered a foreign power, agent of a foreign 
     power, or officer or employee of a foreign power solely upon 
     the basis of activities protected by the first amendment to 
     the Constitution of the United States.
       ``(3) Review.--
       ``(A) Limitations on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1). The 
     judge shall not have jurisdiction to review the means by 
     which an acquisition under this section may be conducted.
       ``(B)  Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause to issue an order 
     under this subsection, the judge shall enter an order so 
     stating and provide a written statement for the record of the 
     reasons for such determination. The Government may appeal an 
     order under this clause pursuant to subsection (e).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the minimization procedures applicable to 
     dissemination of information obtained through an acquisition 
     under this subsection do not meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (e).
       ``(D) Scope of review of certification.--If the judge 
     determines that the certification provided under subsection 
     (b)(4) is clearly erroneous on the basis of the information 
     furnished under subsection (b), the judge shall enter an 
     order so stating and provide a written statement for the 
     record of the reasons for such determination. The Government 
     may appeal an order under this subparagraph pursuant to 
     subsection (e).
       ``(4) Duration.--An order under this paragraph shall be 
     effective for a period not to exceed 90 days and such order 
     may be renewed for additional 90-day periods upon submission 
     of renewal applications meeting the requirements of 
     subsection (b).
       ``(5) Compliance.--At or prior to the end of the period of 
     time for which an order or extension is granted under this 
     section, the judge may assess compliance with the 
     minimization procedures by reviewing the circumstances under 
     which information concerning United States persons was 
     disseminated, provided that the judge may not inquire into 
     the circumstances relating to the conduct of the acquisition.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision in this subsection, if 
     the Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     under that subsection may, with due diligence, be obtained, 
     and
       ``(B) the factual basis for issuance of an order under this 
     section exists,

     the Attorney General may authorize the emergency acquisition 
     if a judge having jurisdiction under subsection (a)(1) is 
     informed by the Attorney General or a designee of the 
     Attorney General at the time of such authorization that the 
     decision has been made to conduct such acquisition and if an 
     application in accordance with this subsection is made to a 
     judge of the Foreign Intelligence Surveillance Court as soon 
     as practicable, but not more than 7 days after the Attorney 
     General authorizes such acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes such emergency acquisition, the Attorney General 
     shall require that the minimization procedures required by 
     this section be followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of an order under subsection (c), the acquisition 
     shall terminate when the information sought is obtained, if 
     the application for the order is denied, or after the 
     expiration of 7 days from the time of authorization by the 
     Attorney General, whichever is earliest.
       ``(4) Use of information.--In the event that such 
     application is denied, or in any other case where the 
     acquisition is terminated and no order is issued approving 
     the acquisition, no information obtained or evidence derived 
     from such acquisition, except under circumstances in which 
     the target of the acquisition is determined not to be a 
     United States person during the pendency of the 7-day 
     emergency acquisition period, shall be received in evidence 
     or otherwise disclosed in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     office, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof, and no information concerning any United 
     States person acquired from such acquisition shall 
     subsequently be used or disclosed in any other manner by 
     Federal officers or employees without the consent of such 
     person, except with the approval of the Attorney General if 
     the information indicates a threat of death or serious bodily 
     harm to any person.
       ``(e) Appeal.--
       ``(1) Appeal to the court of review.--The Government may 
     file an appeal with the Foreign Intelligence Surveillance 
     Court of Review for review of an order issued pursuant to 
     subsection (c). The Court of Review shall have jurisdiction 
     to consider such appeal and shall provide a written statement 
     for the record of the reasons for a decision under this 
     paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of the 
     decision of the Court of Review issued under paragraph (1). 
     The record for such review shall be transmitted under seal to 
     the Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.

     ``SEC. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.

       ``(a) Joint Applications and Orders.--If an acquisition 
     targeting a United States person under section 704 or section 
     705 is proposed to be conducted both inside and outside the 
     United States, a judge having jurisdiction under section 
     704(a)(1) or section 705(a)(1) may issue simultaneously, upon 
     the request of the Government in a joint application 
     complying with the requirements of section 704(b) or section 
     705(b), orders under section 704(c) or section 705(c), as 
     applicable.
       ``(b) Concurrent Authorization.--If an order authorizing 
     electronic surveillance or physical search has been obtained 
     under section 105 or section 304 and that order is still in 
     effect, the Attorney General may authorize, without an order 
     under section 704 or section 705, an acquisition of foreign 
     intelligence information targeting that United States person 
     while such person is reasonably believed to be located 
     outside the United States.

     ``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.

       ``(a) Information Acquired Under Section 703.--Information 
     acquired from an acquisition conducted under section 703 
     shall be deemed to be information acquired from an electronic 
     surveillance pursuant to title I for purposes of section 106, 
     except for the purposes of subsection (j) of such section.
       ``(b) Information Acquired Under Section 704.--Information 
     acquired from an acquisition conducted under section 704 
     shall be deemed to be information acquired from an electronic 
     surveillance pursuant to title I for purposes of section 106.

     ``SEC. 708. CONGRESSIONAL OVERSIGHT.

       ``(a) Semiannual Report.--Not less frequently than once 
     every 6 months, the Attorney General shall fully inform, in a 
     manner consistent with national security, the congressional 
     intelligence committees, the Committee on the Judiciary of 
     the Senate, and the Committee on the Judiciary of the House 
     of Representatives, concerning the implementation of this 
     title.
       ``(b) Content.--Each report made under subparagraph (a) 
     shall include--
       ``(1) with respect to section 703--
       ``(A) any certifications made under subsection 703(f) 
     during the reporting period;
       ``(B) any directives issued under subsection 703(g) during 
     the reporting period;
       ``(C) a description of the judicial review during the 
     reporting period of any such certifications and targeting and 
     minimization procedures utilized with respect to such 
     acquisition, including a copy of any order or pleading in 
     connection with such review that contains a significant legal 
     interpretation of the provisions of this section;
       ``(D) any actions taken to challenge or enforce a directive 
     under paragraphs (4) or (5) of section 703(g);
       ``(E) any compliance reviews conducted by the Department of 
     Justice or the Office of the Director of National 
     Intelligence of acquisitions authorized under subsection 
     703(a);
       ``(F) a description of any incidents of noncompliance with 
     a directive issued by the Attorney General and the Director 
     of National Intelligence under subsection 703(g), including--
       ``(i) incidents of noncompliance by an element of the 
     intelligence community with procedures adopted pursuant to 
     subsections (d) and (e) of section 703; and
       ``(ii) incidents of noncompliance by a specified person to 
     whom the Attorney General and Director of National 
     Intelligence issued a directive under subsection 703(g); and
       ``(G) any procedures implementing this section;
       ``(2) with respect to section 704--

[[Page 4377]]

       ``(A) the total number of applications made for orders 
     under section 704(b);
       ``(B) the total number of such orders either granted, 
     modified, or denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under section 704(d) and the total 
     number of subsequent orders approving or denying such 
     acquisitions; and
       ``(3) with respect to section 705--
       ``(A) the total number of applications made for orders 
     under 705(b);
       ``(B) the total number of such orders either granted, 
     modified, or denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under subsection 705(d) and the total 
     number of subsequent orders approving or denying such 
     applications.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et. seq.) is amended--
       (1) by striking the item relating to title VII;
       (2) by striking the item relating to section 701; and
       (3) by adding at the end the following:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United 
              States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United 
              States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside 
              the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.

       (c) Technical and Conforming Amendments.--
       (1) Title 18, united states code.--
       (A) Section 2232.--Section 2232(e) of title 18, United 
     States Code, is amended by inserting ``(as defined in section 
     101(f) of the Foreign Intelligence Surveillance Act of 1978, 
     regardless of the limitation of section 701 of that Act)'' 
     after ``electronic surveillance''.
       (B) Section 2511.--Section 2511(2)(a)(ii)(A) of title 18, 
     United States Code, is amended by inserting ``or a court 
     order pursuant to section 705 of the Foreign Intelligence 
     Surveillance Act of 1978'' after ``assistance''.
       (2) Foreign intelligence surveillance act of 1978.--
       (A) Section 109.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended by 
     adding at the end the following:
       ``(e) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act regardless of the 
     limitation of section 701 of this Act.''.
       (B) Section 110.--Section 110 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1810) is amended by--
       (i) adding an ``(a)'' before ``Civil Action'',
       (ii) redesignating subsections (a) through (c) as 
     paragraphs (1) through (3), respectively; and
       (iii) adding at the end the following:
       ``(b) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act regardless of the 
     limitation of section 701 of this Act.''.
       (C) Section 601.--Section 601(a)(1) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)) 
     is amended by striking subparagraphs (C) and (D) and 
     inserting the following:
       ``(C) pen registers under section 402;
       ``(D) access to records under section 501;
       ``(E) acquisitions under section 704; and
       ``(F) acquisitions under section 705;''.
       (d) Termination of Authority.--
       (1) In general.--Except as provided in paragraph (2), the 
     amendments made by subsections (a)(2), (b), and (c) shall 
     cease to have effect on December 31, 2013.
       (2) Continuing applicability.--Section 703(g)(3) of the 
     Foreign Intelligence Surveillance Act of 1978 (as amended by 
     subsection (a)) shall remain in effect with respect to any 
     directive issued pursuant to section 703(g) of that Act (as 
     so amended) for information, facilities, or assistance 
     provided during the period such directive was or is in 
     effect. Section 704(e) of the Foreign Intelligence 
     Surveillance Act of 1978 (as amended by subsection (a)) shall 
     remain in effect with respect to an order or request for 
     emergency assistance under that section. The use of 
     information acquired by an acquisition conducted under 
     section 703 of that Act (as so amended) shall continue to be 
     governed by the provisions of section 707 of that Act (as so 
     amended).

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF DOMESTIC 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:


  ``statement of exclusive means by which electronic surveillance and 
        interception of domestic communications may be conducted

       ``Sec. 112.  The procedures of chapters 119, 121, and 206 
     of title 18, United States Code, and this Act shall be the 
     exclusive means by which electronic surveillance (as defined 
     in section 101(f), regardless of the limitation of section 
     701) and the interception of domestic wire, oral, or 
     electronic communications may be conducted.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by adding after the item 
     relating to section 111, the following:

``Sec. 112. Statement of exclusive means by which electronic 
              surveillance and interception of domestic communications 
              may be conducted.''.

       (c) Conforming Amendments.--Section 2511(2) of title 18, 
     United States Code, is amended in paragraph (f), by striking 
     ``, as defined in section 101 of such Act,'' and inserting 
     ``(as defined in section 101(f) of such Act regardless of the 
     limitation of section 701 of such Act)''.

     SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER 
                   THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
                   1978.

       (a) Inclusion of Certain Orders in Semiannual Reports of 
     Attorney General.--Subsection (a)(5) of section 601 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1871) is amended by striking ``(not including orders)'' and 
     inserting ``, orders,''.
       (b) Reports by Attorney General on Certain Other Orders.--
     Such section 601 is further amended by adding at the end the 
     following:
       ``(c) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings, applications, or memoranda of 
     law associated with such decision, order, or opinion, not 
     later than 45 days after such decision, order, or opinion is 
     issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     any pleadings, applications, or memoranda of law associated 
     with such decision, order, or opinion, that was issued during 
     the 5-year period ending on the date of the enactment of the 
     FISA Amendments Act of 2008 and not previously submitted in a 
     report under subsection (a).
       ``(d) Protection of National Security.--The Attorney 
     General, in consultation with the Director of National 
     Intelligence, may authorize redactions of materials described 
     in subsection (c) that are provided to the committees of 
     Congress referred to in subsection (a), if such redactions 
     are necessary to protect the national security of the United 
     States and are limited to sensitive sources and methods 
     information or the identities of targets.''.
       (c) Definitions.--Such section 601, as amended by 
     subsections (a) and (b), is further amended by adding at the 
     end the following:
       ``(e) Definitions.--In this section:
       ``(1) Foreign intelligence surveillance court; court.--The 
     term `` `Foreign Intelligence Surveillance Court' '' means 
     the court established by section 103(a).
       ``(2) Foreign intelligence surveillance court of review; 
     court of review.--The term `Foreign Intelligence Surveillance 
     Court of Review' means the court established by section 
     103(b).''.

     SEC. 104. APPLICATIONS FOR COURT ORDERS.

       Section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804) is amended--
       (1) in subsection (a)--
       (A) by striking paragraphs (2) and (11);
       (B) by redesignating paragraphs (3) through (10) as 
     paragraphs (2) through (9), respectively;
       (C) in paragraph (5), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed'';
       (D) in paragraph (6), as redesignated by subparagraph (B) 
     of this paragraph, in the matter preceding subparagraph (A)--
       (i) by striking ``Affairs or'' and inserting ``Affairs,''; 
     and
       (ii) by striking ``Senate--'' and inserting ``Senate, or 
     the Deputy Director of the Federal Bureau of Investigation, 
     if designated by the President as a certifying official--'';
       (E) in paragraph (7), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``statement of'' and inserting 
     ``summary statement of'';
       (F) in paragraph (8), as redesignated by subparagraph (B) 
     of this paragraph, by adding ``and'' at the end; and
       (G) in paragraph (9), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``; and'' and inserting a 
     period;
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as 
     subsections (b) through (d), respectively; and
       (4) in paragraph (1)(A) of subsection (d), as redesignated 
     by paragraph (3) of this subsection, by striking ``or the 
     Director of National Intelligence'' and inserting ``the 
     Director of National Intelligence, or the Director of the 
     Central Intelligence Agency''.

     SEC. 105. ISSUANCE OF AN ORDER.

       Section 105 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1805) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively;

[[Page 4378]]

       (2) in subsection (b), by striking ``(a)(3)'' and inserting 
     ``(a)(2)'';
       (3) in subsection (c)(1)--
       (A) in subparagraph (D), by adding ``and'' at the end;
       (B) in subparagraph (E), by striking ``; and'' and 
     inserting a period; and
       (C) by striking subparagraph (F);
       (4) by striking subsection (d);
       (5) by redesignating subsections (e) through (i) as 
     subsections (d) through (h), respectively;
       (6) by amending subsection (e), as redesignated by 
     paragraph (5) of this section, to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of electronic surveillance if the Attorney General--
       ``(A) reasonably determines that an emergency situation 
     exists with respect to the employment of electronic 
     surveillance to obtain foreign intelligence information 
     before an order authorizing such surveillance can with due 
     diligence be obtained;
       ``(B) reasonably determines that the factual basis for 
     issuance of an order under this title to approve such 
     electronic surveillance exists;
       ``(C) informs, either personally or through a designee, a 
     judge having jurisdiction under section 103 at the time of 
     such authorization that the decision has been made to employ 
     emergency electronic surveillance; and
       ``(D) makes an application in accordance with this title to 
     a judge having jurisdiction under section 103 as soon as 
     practicable, but not later than 7 days after the Attorney 
     General authorizes such surveillance.
       ``(2) If the Attorney General authorizes the emergency 
     employment of electronic surveillance under paragraph (1), 
     the Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     electronic surveillance, the surveillance shall terminate 
     when the information sought is obtained, when the application 
     for the order is denied, or after the expiration of 7 days 
     from the time of authorization by the Attorney General, 
     whichever is earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5) In the event that such application for approval is 
     denied, or in any other case where the electronic 
     surveillance is terminated and no order is issued approving 
     the surveillance, no information obtained or evidence derived 
     from such surveillance shall be received in evidence or 
     otherwise disclosed in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     office, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof, and no information concerning any United 
     States person acquired from such surveillance shall 
     subsequently be used or disclosed in any other manner by 
     Federal officers or employees without the consent of such 
     person, except with the approval of the Attorney General if 
     the information indicates a threat of death or serious bodily 
     harm to any person.
       ``(6) The Attorney General shall assess compliance with the 
     requirements of paragraph (5).''; and
       (7) by adding at the end the following:
       ``(i) In any case in which the Government makes an 
     application to a judge under this title to conduct electronic 
     surveillance involving communications and the judge grants 
     such application, upon the request of the applicant, the 
     judge shall also authorize the installation and use of pen 
     registers and trap and trace devices, and direct the 
     disclosure of the information set forth in section 
     402(d)(2).''.

     SEC. 106. USE OF INFORMATION.

       Subsection (i) of section 106 of the Foreign Intelligence 
     Surveillance Act of 1978 (8 U.S.C. 1806) is amended by 
     striking ``radio communication'' and inserting 
     ``communication''.

     SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.

       (a) Applications.--Section 303 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (2);
       (B) by redesignating paragraphs (3) through (9) as 
     paragraphs (2) through (8), respectively;
       (C) in paragraph (2), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed'';
       (D) in paragraph (3)(C), as redesignated by subparagraph 
     (B) of this paragraph, by inserting ``or is about to be'' 
     before ``owned''; and
       (E) in paragraph (6), as redesignated by subparagraph (B) 
     of this paragraph, in the matter preceding subparagraph (A)--
       (i) by striking ``Affairs or'' and inserting ``Affairs,''; 
     and
       (ii) by striking ``Senate--'' and inserting ``Senate, or 
     the Deputy Director of the Federal Bureau of Investigation, 
     if designated by the President as a certifying official--''; 
     and
       (2) in subsection (d)(1)(A), by striking ``or the Director 
     of National Intelligence'' and inserting ``the Director of 
     National Intelligence, or the Director of the Central 
     Intelligence Agency''.
       (b) Orders.--Section 304 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively; and
       (2) by amending subsection (e) to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of a physical search if the Attorney General reasonably--
       ``(A) determines that an emergency situation exists with 
     respect to the employment of a physical search to obtain 
     foreign intelligence information before an order authorizing 
     such physical search can with due diligence be obtained;
       ``(B) determines that the factual basis for issuance of an 
     order under this title to approve such physical search 
     exists;
       ``(C) informs, either personally or through a designee, a 
     judge of the Foreign Intelligence Surveillance Court at the 
     time of such authorization that the decision has been made to 
     employ an emergency physical search; and
       ``(D) makes an application in accordance with this title to 
     a judge of the Foreign Intelligence Surveillance Court as 
     soon as practicable, but not more than 7 days after the 
     Attorney General authorizes such physical search.
       ``(2) If the Attorney General authorizes the emergency 
     employment of a physical search under paragraph (1), the 
     Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     physical search, the physical search shall terminate when the 
     information sought is obtained, when the application for the 
     order is denied, or after the expiration of 7 days from the 
     time of authorization by the Attorney General, whichever is 
     earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5)(A) In the event that such application for approval is 
     denied, or in any other case where the physical search is 
     terminated and no order is issued approving the physical 
     search, no information obtained or evidence derived from such 
     physical search shall be received in evidence or otherwise 
     disclosed in any trial, hearing, or other proceeding in or 
     before any court, grand jury, department, office, agency, 
     regulatory body, legislative committee, or other authority of 
     the United States, a State, or political subdivision thereof, 
     and no information concerning any United States person 
     acquired from such physical search shall subsequently be used 
     or disclosed in any other manner by Federal officers or 
     employees without the consent of such person, except with the 
     approval of the Attorney General if the information indicates 
     a threat of death or serious bodily harm to any person.
       ``(B) The Attorney General shall assess compliance with the 
     requirements of subparagraph (A).''.
       (c) Conforming Amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is 
     amended--
       (1) in section 304(a)(4), as redesignated by subsection (b) 
     of this section, by striking ``303(a)(7)(E)'' and inserting 
     ``303(a)(6)(E)''; and
       (2) in section 305(k)(2), by striking ``303(a)(7)'' and 
     inserting ``303(a)(6)''.

     SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND 
                   TRACE DEVICES.

       Section 403 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1843) is amended--
       (1) in subsection (a)(2), by striking ``48 hours'' and 
     inserting ``7 days''; and
       (2) in subsection (c)(1)(C), by striking ``48 hours'' and 
     inserting ``7 days''.

     SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.

       (a) Designation of Judges.--Subsection (a) of section 103 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1803) is amended by inserting ``at least'' before 
     ``seven of the United States judicial circuits''.
       (b) En Banc Authority.--
       (1) In general.--Subsection (a) of section 103 of the 
     Foreign Intelligence Surveillance Act of 1978, as amended by 
     subsection (a) of this section, is further amended--
       (A) by inserting ``(1)'' after ``(a)''; and
       (B) by adding at the end the following new paragraph:
       ``(2)(A) The court established under this subsection may, 
     on its own initiative, or upon the request of the Government 
     in any proceeding or a party under section 501(f) or 
     paragraph (4) or (5) of section 703(h), hold a hearing or 
     rehearing, en banc, when ordered by a majority of the judges 
     that constitute such court upon a determination that--
       ``(i) en banc consideration is necessary to secure or 
     maintain uniformity of the court's decisions; or
       ``(ii) the proceeding involves a question of exceptional 
     importance.
       ``(B) Any authority granted by this Act to a judge of the 
     court established under this subsection may be exercised by 
     the court en banc. When exercising such authority, the court 
     en banc shall comply with any requirements of this Act on the 
     exercise of such authority.
       ``(C) For purposes of this paragraph, the court en banc 
     shall consist of all judges who constitute the court 
     established under this subsection.''.
       (2) Conforming amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 is further amended--
       (A) in subsection (a) of section 103, as amended by this 
     subsection, by inserting ``(except when sitting en banc under 
     paragraph (2))'' after ``no judge designated under this 
     subsection''; and
       (B) in section 302(c) (50 U.S.C. 1822(c)), by inserting 
     ``(except when sitting en banc)'' after ``except that no 
     judge''.

[[Page 4379]]

       (c) Stay or Modification During an Appeal.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f)(1) A judge of the court established under subsection 
     (a), the court established under subsection (b) or a judge of 
     that court, or the Supreme Court of the United States or a 
     justice of that court, may, in accordance with the rules of 
     their respective courts, enter a stay of an order or an order 
     modifying an order of the court established under subsection 
     (a) or the court established under subsection (b) entered 
     under any title of this Act, while the court established 
     under subsection (a) conducts a rehearing, while an appeal is 
     pending to the court established under subsection (b), or 
     while a petition of certiorari is pending in the Supreme 
     Court of the United States, or during the pendency of any 
     review by that court.
       ``(2) The authority described in paragraph (1) shall apply 
     to an order entered under any provision of this Act.''.
       (d) Authority of Foreign Intelligence Surveillance Court.--
     Section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803), as amended by this Act, is amended by 
     adding at the end the following:
       ``(h)(1) Nothing in this Act shall be considered to reduce 
     or contravene the inherent authority of the Foreign 
     Intelligence Surveillance Court to determine, or enforce, 
     compliance with an order or a rule of such Court or with a 
     procedure approved by such Court.
       ``(2) In this subsection, the terms `Foreign Intelligence 
     Surveillance Court' and `Court' mean the court established by 
     subsection (a).''.

     SEC. 110. WEAPONS OF MASS DESTRUCTION.

       (a) Definitions.--
       (1) Foreign power.--Subsection (a)(4) of section 101 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(a)(4)) is amended by inserting ``, the international 
     proliferation of weapons of mass destruction,'' after 
     ``international terrorism''.
       (2) Agent of a foreign power.--Subsection (b)(1) of such 
     section 101 is amended--
       (A) in subparagraph (B), by striking ``or'' at the end
       (B) in subparagraph (C), by striking ``or'' at the end; and
       (C) by adding at the end the following new subparagraphs:
       ``(D) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor; 
     or
       ``(E) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor, 
     for or on behalf of a foreign power; or''.
       (3) Foreign intelligence information.--Subsection (e)(1)(B) 
     of such section 101 is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (4) Weapon of mass destruction.--Such section 101 is 
     amended by inserting after subsection (o) the following:
       ``(p) `Weapon of mass destruction' means--
       ``(1) any destructive device described in section 
     921(a)(4)(A) of title 18, United States Code, that is 
     intended or has the capability to cause death or serious 
     bodily injury to a significant number of people;
       ``(2) any weapon that is designed or intended to cause 
     death or serious bodily injury through the release, 
     dissemination, or impact of toxic or poisonous chemicals or 
     their precursors;
       ``(3) any weapon involving a biological agent, toxin, or 
     vector (as such terms are defined in section 178 of title 18, 
     United States Code); or
       ``(4) any weapon that is designed to release radiation or 
     radioactivity at a level dangerous to human life.''.
       (b) Use of Information.--
       (1) In general.--Section 106(k)(1)(B) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1806(k)(1)(B)) is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (2) Physical searches.--Section 305(k)(1)(B) of such Act 
     (50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage 
     or international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (c) Technical and Conforming Amendment.--Section 301(1) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1821(1)) is amended by inserting `` `weapon of mass 
     destruction','' after `` `person',''.

     SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.

       Section 103(e) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1803(e)) is amended--
       (1) in paragraph (1), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 703''; and
       (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 703''.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

     SEC. 201. DEFINITIONS.

       In this title:
       (1) Assistance.--The term ``assistance'' means the 
     provision of, or the provision of access to, information 
     (including communication contents, communications records, or 
     other information relating to a customer or communication), 
     facilities, or another form of assistance.
       (2) Contents.--The term ``contents'' has the meaning given 
     that term in section 101(n) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(n)).
       (3) Covered civil action.--The term ``covered civil 
     action'' means a civil action filed in a Federal or State 
     court that--
       (A) alleges that an electronic communication service 
     provider furnished assistance to an element of the 
     intelligence community; and
       (B) seeks monetary or other relief from the electronic 
     communication service provider related to the provision of 
     such assistance.
       (4) Electronic communication service provider.--The term 
     ``electronic communication service provider'' means--
       (A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       (B) a provider of an electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       (C) a provider of a remote computing service, as that term 
     is defined in section 2711 of title 18, United States Code;
       (D) any other communication service provider who has access 
     to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored;
       (E) a parent, subsidiary, affiliate, successor, or assignee 
     of an entity described in subparagraph (A), (B), (C), or (D); 
     or
       (F) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), (D), or (E).
       (5) Element of the intelligence community.--The term 
     ``element of the intelligence community'' means an element of 
     the intelligence community specified in or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).

     SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC 
                   COMMUNICATION SERVICE PROVIDERS.

       (a) Limitations.--
       (1) In general.--Notwithstanding any other provision of 
     law, a covered civil action shall not lie or be maintained in 
     a Federal or State court, and shall be promptly dismissed, if 
     the Attorney General certifies to the court that--
       (A) the assistance alleged to have been provided by the 
     electronic communication service provider was--
       (i) in connection with an intelligence activity involving 
     communications that was--

       (I) authorized by the President during the period beginning 
     on September 11, 2001, and ending on January 17, 2007; and
       (II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       (ii) described in a written request or directive from the 
     Attorney General or the head of an element of the 
     intelligence community (or the deputy of such person) to the 
     electronic communication service provider indicating that the 
     activity was--

       (I) authorized by the President; and
       (II) determined to be lawful; or

       (B) the electronic communication service provider did not 
     provide the alleged assistance.
       (2) Review.--A certification made pursuant to paragraph (1) 
     shall be subject to review by a court for abuse of 
     discretion.
       (b) Review of Certifications.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       (1) review such certification in camera and ex parte; and
       (2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       (c) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General (or Acting Attorney General) or a designee 
     in a position not lower than the Deputy Attorney General.
       (d) Civil Actions in State Court.--A covered civil action 
     that is brought in a State court shall be deemed to arise 
     under the Constitution and laws of the United States and 
     shall be removable under section 1441 of title 28, United 
     States Code.
       (e) Rule of Construction.--Nothing in this section may be 
     construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       (f) Effective Date and Application.--This section shall 
     apply to any covered civil action that is pending on or filed 
     after the date of enactment of this Act.

     SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES 
                   UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                   OF 1978.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.), as amended by section 101, is further 
     amended by adding after title VII the following new title:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

     ``SEC. 801. DEFINITIONS.

       ``In this title:
       ``(1) Assistance.--The term `assistance' means the 
     provision of, or the provision of access to, information 
     (including communication contents, communications records, or 
     other information

[[Page 4380]]

     relating to a customer or communication), facilities, or 
     another form of assistance.
       ``(2) Attorney general.--The term `Attorney General' has 
     the meaning give that term in section 101(g).
       ``(3) Contents.--The term `contents' has the meaning given 
     that term in section 101(n).
       ``(4) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored;
       ``(E) a parent, subsidiary, affiliate, successor, or 
     assignee of an entity described in subparagraph (A), (B), 
     (C), or (D); or
       ``(F) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), (D), or (E).
       ``(5) Element of the intelligence community.--The term 
     `element of the intelligence community' means an element of 
     the intelligence community as specified or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).
       ``(6) Person.--The term `person' means--
       ``(A) an electronic communication service provider; or
       ``(B) a landlord, custodian, or other person who may be 
     authorized or required to furnish assistance pursuant to--
       ``(i) an order of the court established under section 
     103(a) directing such assistance;
       ``(ii) a certification in writing under section 
     2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; 
     or
       ``(iii) a directive under section 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008 or 703(h).
       ``(7) State.--The term `State' means any State, political 
     subdivision of a State, the Commonwealth of Puerto Rico, the 
     District of Columbia, and any territory or possession of the 
     United States, and includes any officer, public utility 
     commission, or other body authorized to regulate an 
     electronic communication service provider.

     ``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

       ``(a) Requirement for Certification.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, no civil action may lie or be maintained in a Federal or 
     State court against any person for providing assistance to an 
     element of the intelligence community, and shall be promptly 
     dismissed, if the Attorney General certifies to the court 
     that--
       ``(A) any assistance by that person was provided pursuant 
     to an order of the court established under section 103(a) 
     directing such assistance;
       ``(B) any assistance by that person was provided pursuant 
     to a certification in writing under section 2511(2)(a)(ii)(B) 
     or 2709(b) of title 18, United States Code;
       ``(C) any assistance by that person was provided pursuant 
     to a directive under sections 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008, or 703(h) directing such 
     assistance; or
       ``(D) the person did not provide the alleged assistance.
       ``(2) Review.--A certification made pursuant to paragraph 
     (1) shall be subject to review by a court for abuse of 
     discretion.
       ``(b) Limitations on Disclosure.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       ``(1) review such certification in camera and ex parte; and
       ``(2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       ``(c) Removal.--A civil action against a person for 
     providing assistance to an element of the intelligence 
     community that is brought in a State court shall be deemed to 
     arise under the Constitution and laws of the United States 
     and shall be removable under section 1441 of title 28, United 
     States Code.
       ``(d) Relationship to Other Laws.--Nothing in this section 
     may be construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       ``(e) Applicability.--This section shall apply to a civil 
     action pending on or filed after the date of enactment of the 
     FISA Amendments Act of 2008.''.

     SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.

       Title VIII of the Foreign Intelligence Surveillance Act (50 
     U.S.C. 1801 et seq.), as added by section 203 of this Act, is 
     amended by adding at the end the following new section:

     ``SEC. 803. PREEMPTION.

       ``(a) In General.--No State shall have authority to--
       ``(1) conduct an investigation into an electronic 
     communication service provider's alleged assistance to an 
     element of the intelligence community;
       ``(2) require through regulation or any other means the 
     disclosure of information about an electronic communication 
     service provider's alleged assistance to an element of the 
     intelligence community;
       ``(3) impose any administrative sanction on an electronic 
     communication service provider for assistance to an element 
     of the intelligence community; or
       ``(4) commence or maintain a civil action or other 
     proceeding to enforce a requirement that an electronic 
     communication service provider disclose information 
     concerning alleged assistance to an element of the 
     intelligence community.
       ``(b) Suits by the United States.--The United States may 
     bring suit to enforce the provisions of this section.
       ``(c) Jurisdiction.--The district courts of the United 
     States shall have jurisdiction over any civil action brought 
     by the United States to enforce the provisions of this 
     section.
       ``(d) Application.--This section shall apply to any 
     investigation, action, or proceeding that is pending on or 
     filed after the date of enactment of the FISA Amendments Act 
     of 2008.''.

     SEC. 205. TECHNICAL AMENDMENTS.

       The table of contents in the first section of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), as amended by section 101(b), is further amended by 
     adding at the end the following:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.

                      TITLE III--OTHER PROVISIONS

     SEC. 301. SEVERABILITY.

       If any provision of this Act, any amendment made by this 
     Act, or the application thereof to any person or 
     circumstances is held invalid, the validity of the remainder 
     of the Act, any such amendments, and of the application of 
     such provisions to other persons and circumstances shall not 
     be affected thereby.

     SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.

       (a) In General.--Except as provided in subsection (c), the 
     amendments made by this Act shall take effect on the date of 
     the enactment of this Act.
       (b) Repeal.--
       (1) In general.--Except as provided in subsection (c), 
     sections 105A, 105B, and 105C of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) 
     are repealed.
       (2) Table of contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by striking the items 
     relating to sections 105A, 105B, and 105C.
       (c) Transitions Procedures.--
       (1) Protection from liability.--Notwithstanding subsection 
     (b)(1), subsection (l) of section 105B of the Foreign 
     Intelligence Surveillance Act of 1978 shall remain in effect 
     with respect to any directives issued pursuant to such 
     section 105B for information, facilities, or assistance 
     provided during the period such directive was or is in 
     effect.
       (2) Orders in effect.--
       (A) Orders in effect on date of enactment.--Notwithstanding 
     any other provision of this Act or of the Foreign 
     Intelligence Surveillance Act of 1978--
       (i) any order in effect on the date of enactment of this 
     Act issued pursuant to the Foreign Intelligence Surveillance 
     Act of 1978 or section 6(b) of the Protect America Act of 
     2007 (Public Law 110-55; 121 Stat. 556) shall remain in 
     effect until the date of expiration of such order; and
       (ii) at the request of the applicant, the court established 
     under section 103(a) of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order 
     if the facts and circumstances continue to justify issuance 
     of such order under the provisions of such Act, as in effect 
     on the day before the date of the enactment of the Protect 
     America Act of 2007, except as amended by sections 102, 103, 
     104, 105, 106, 107, 108, 109, and 110 of this Act.
       (B) Orders in effect on december 31, 2013.--Any order 
     issued under title VII of the Foreign Intelligence 
     Surveillance Act of 1978, as amended by section 101 of this 
     Act, in effect on December 31, 2013, shall continue in effect 
     until the date of the expiration of such order. Any such 
     order shall be governed by the applicable provisions of the 
     Foreign Intelligence Surveillance Act of 1978, as so amended.
       (3) Authorizations and directives in effect.--
       (A) Authorizations and directives in effect on date of 
     enactment.--Notwithstanding any other provision of this Act 
     or of the Foreign Intelligence Surveillance Act of 1978, any 
     authorization or directive in effect on the date of the 
     enactment of this Act issued pursuant to the Protect America 
     Act of 2007, or any amendment made by that Act, shall remain 
     in effect until the date of expiration of such authorization 
     or directive. Any such authorization or directive shall be 
     governed by the applicable provisions of the Protect America 
     Act of 2007 (121 Stat. 552), and the amendment made by that 
     Act, and, except as provided in paragraph (4) of this 
     subsection, any acquisition pursuant to such authorization or 
     directive shall be deemed not to constitute electronic 
     surveillance (as that term is

[[Page 4381]]

     defined in section 101(f) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(f)), as construed in 
     accordance with section 105A of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1805a)).
       (B) Authorizations and directives in effect on december 31, 
     2013.--Any authorization or directive issued under title VII 
     of the Foreign Intelligence Surveillance Act of 1978, as 
     amended by section 101 of this Act, in effect on December 31, 
     2013, shall continue in effect until the date of the 
     expiration of such authorization or directive. Any such 
     authorization or directive shall be governed by the 
     applicable provisions of the Foreign Intelligence 
     Surveillance Act of 1978, as so amended, and, except as 
     provided in section 707 of the Foreign Intelligence 
     Surveillance Act of 1978, as so amended, any acquisition 
     pursuant to such authorization or directive shall be deemed 
     not to constitute electronic surveillance (as that term is 
     defined in section 101(f) of the Foreign Intelligence 
     Surveillance Act of 1978, to the extent that such section 
     101(f) is limited by section 701 of the Foreign Intelligence 
     Surveillance Act of 1978, as so amended).
       (4) Use of information acquired under protect america 
     act.--Information acquired from an acquisition conducted 
     under the Protect America Act of 2007, and the amendments 
     made by that Act, shall be deemed to be information acquired 
     from an electronic surveillance pursuant to title I of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.) for purposes of section 106 of that Act (50 U.S.C. 
     1806), except for purposes of subsection (j) of such section.
       (5) New orders.--Notwithstanding any other provision of 
     this Act or of the Foreign Intelligence Surveillance Act of 
     1978--
       (A) the government may file an application for an order 
     under the Foreign Intelligence Surveillance Act of 1978, as 
     in effect on the day before the date of the enactment of the 
     Protect America Act of 2007, except as amended by sections 
     102, 103, 104, 105, 106, 107, 108, 109, and 110 of this Act; 
     and
       (B) the court established under section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 shall enter an 
     order granting such an application if the application meets 
     the requirements of such Act, as in effect on the day before 
     the date of the enactment of the Protect America Act of 2007, 
     except as amended by sections 102, 103, 104, 105, 106, 107, 
     108, 109, and 110 of this Act.
       (6) Extant authorizations.--At the request of the 
     applicant, the court established under section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 shall 
     extinguish any extant authorization to conduct electronic 
     surveillance or physical search entered pursuant to such Act.
       (7) Applicable provisions.--Any surveillance conducted 
     pursuant to an order entered pursuant to this subsection 
     shall be subject to the provisions of the Foreign 
     Intelligence Surveillance Act of 1978, as in effect on the 
     day before the date of the enactment of the Protect America 
     Act of 2007, except as amended by sections 102, 103, 104, 
     105, 106, 107, 108, 109, and 110 of this Act.
       (8) Transition procedures concerning the targeting of 
     united states persons overseas.--Any authorization in effect 
     on the date of enactment of this Act under section 2.5 of 
     Executive Order 12333 to intentionally target a United States 
     person reasonably believed to be located outside the United 
     States shall remain in effect, and shall constitute a 
     sufficient basis for conducting such an acquisition targeting 
     a United States person located outside the United States 
     until the earlier of--
       (A) the date that authorization expires; or
       (B) the date that is 90 days after the date of the 
     enactment of this Act.


                     Motion Offered by Mr. Conyers

  Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 1041, I have a 
motion at the desk.
  The SPEAKER pro tempore. The Clerk will designate the motion.
  The text of the motion is as follows:

       Motion offered by Mr. Conyers:
       Mr. Conyers moves that the House concur in the Senate 
     amendment to H.R. 3773 with the amendment printed in House 
     Report 110-549.

  The text of the House amendment to the Senate amendment is as 
follows:

       In lieu of the matter proposed to be inserted by the 
     Senate, insert the following:

     SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Foreign 
     Intelligence Surveillance Act of 1978 Amendments Act of 
     2008'' or the ``FISA Amendments Act of 2008''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

Sec. 101. Additional procedures regarding certain persons outside the 
              United States.
Sec. 102. Statement of exclusive means by which electronic surveillance 
              and interception of certain communications may be 
              conducted.
Sec. 103. Submittal to Congress of certain court orders under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace 
              devices.
Sec. 109. Foreign intelligence surveillance court.
Sec. 110. Review of previous actions.
Sec. 111. Weapons of mass destruction.
Sec. 112. Statute of limitations.

        TITLE II--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

Sec. 201. Statutory defenses.
Sec. 202. Technical amendments.

TITLE III--COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE ACTIVITIES

Sec. 301. Commission on Warrantless Electronic Surveillance Activities.

                       TITLE IV--OTHER PROVISIONS

Sec. 401. Severability.
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. Transition procedures.
Sec. 405. No rights under the FISA Amendments Act of 2008 for 
              undocumented aliens.
Sec. 406. Surveillance to protect the United States.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

     SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS 
                   OUTSIDE THE UNITED STATES.

       (a) In General.--The Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) is amended--
       (1) by striking title VII; and
       (2) by adding after title VI the following new title:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

     ``SEC. 701. DEFINITIONS.

       ``(a) In General.--The terms `agent of a foreign power', 
     `Attorney General', `contents', `electronic surveillance', 
     `foreign intelligence information', `foreign power', 
     `minimization procedures', `person', `United States', and 
     `United States person' have the meanings given such terms in 
     section 101, except as specifically provided in this title.
       ``(b) Additional Definitions.--
       ``(1) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means--
       ``(A) the Select Committee on Intelligence of the Senate; 
     and
       ``(B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(2) Foreign intelligence surveillance court; court.--The 
     terms `Foreign Intelligence Surveillance Court' and `Court' 
     mean the court established by section 103(a).
       ``(3) Foreign intelligence surveillance court of review; 
     court of review.--The terms `Foreign Intelligence 
     Surveillance Court of Review' and `Court of Review' mean the 
     court established by section 103(b).
       ``(4) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored; or
       ``(E) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), or (D).
       ``(5) Intelligence community.--The term `intelligence 
     community' has the meaning given the term in section 3(4) of 
     the National Security Act of 1947 (50 U.S.C. 401a(4)).

     ``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE 
                   THE UNITED STATES OTHER THAN UNITED STATES 
                   PERSONS.

       ``(a) Authorization.--Notwithstanding any other provision 
     of law, pursuant to an order issued in accordance with 
     subsection (i)(3) or a determination under subsection 
     (g)(1)(B), the Attorney General and the Director of National 
     Intelligence may authorize jointly, for a period of up to 1 
     year from the effective date of the authorization, the 
     targeting of persons reasonably believed to be located 
     outside the United States to acquire foreign intelligence 
     information.
       ``(b) Limitations.--An acquisition authorized under 
     subsection (a)--
       ``(1) may not intentionally target any person known at the 
     time of acquisition to be located in the United States;
       ``(2) may not intentionally target a person reasonably 
     believed to be located outside the United States in order to 
     target a particular, known person reasonably believed to be 
     in the United States;
       ``(3) may not intentionally target a United States person 
     reasonably believed to be located outside the United States;
       ``(4) may not intentionally acquire any communication as to 
     which the sender and all intended recipients are known at the

[[Page 4382]]

     time of the acquisition to be located in the United States; 
     and
       ``(5) shall be conducted in a manner consistent with the 
     fourth amendment to the Constitution of the United States.
       ``(c) Conduct of Acquisition.--An acquisition authorized 
     under subsection (a) may be conducted only in accordance 
     with--
       ``(1) a certification made by the Attorney General and the 
     Director of National Intelligence pursuant to subsection (g) 
     or a determination under paragraph (1)(B) of such subsection; 
     and
       ``(2) the procedures and guidelines required pursuant to 
     subsections (d), (e), and (f).
       ``(d) Targeting Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt targeting procedures that are reasonably designed 
     to ensure that any acquisition authorized under subsection 
     (a) is limited to targeting persons reasonably believed to be 
     located outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(2) Judicial review.--The procedures required by 
     paragraph (1) shall be subject to judicial review pursuant to 
     subsection (i).
       ``(e) Minimization Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt minimization procedures for acquisitions 
     authorized under subsection (a) that--
       ``(A) in the case of electronic surveillance, meet the 
     definition of minimization procedures under section 101(h); 
     and
       ``(B) in the case of a physical search, meet the definition 
     of minimization procedures under section 301(4).
       ``(2) Judicial review.--The minimization procedures 
     required by paragraph (1) shall be subject to judicial review 
     pursuant to subsection (i).
       ``(f) Guidelines for Compliance With Limitations.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt guidelines to ensure--
       ``(A) compliance with the limitations in subsection (b); 
     and
       ``(B) that an application is filed under section 104 or 
     303, if required by this Act.
       ``(2) Criteria.--With respect to subsection (b)(2), the 
     guidelines adopted pursuant to paragraph (1) shall contain 
     specific criteria for determining whether a significant 
     purpose of an acquisition is to acquire the communications of 
     a specific United States person reasonably believed to be 
     located in the United States. Such criteria shall include 
     consideration of whether--
       ``(A) the department or agency of the Federal Government 
     conducting the acquisition has made an inquiry to another 
     department or agency of the Federal Government to gather 
     information on the specific United States person;
       ``(B) the department or agency of the Federal Government 
     conducting the acquisition has provided information that 
     identifies the specific United States person to another 
     department or agency of the Federal Government;
       ``(C) the department or agency of the Federal Government 
     conducting the acquisition determines that the specific 
     United States person has been the subject of ongoing interest 
     or repeated investigation by a department or agency of the 
     Federal Government; and
       ``(D) the specific United States person is a natural 
     person.
       ``(3) Training.--The Director of National Intelligence 
     shall establish a training program for appropriate personnel 
     of the intelligence community to ensure that the guidelines 
     adopted pursuant to paragraph (1) are properly implemented.
       ``(4) Submission to congress and foreign intelligence 
     surveillance court.--The Attorney General shall submit the 
     guidelines adopted pursuant to paragraph (1) to--
       ``(A) the congressional intelligence committees;
       ``(B) the Committees on the Judiciary of the House of 
     Representatives and the Senate; and
       ``(C) the Foreign Intelligence Surveillance Court.
       ``(g) Certification.--
       ``(1) In general.--
       ``(A) Requirement.--Subject to subparagraph (B), if the 
     Attorney General and the Director of National Intelligence 
     seek to authorize an acquisition under this section, the 
     Attorney General and the Director of National Intelligence 
     shall provide, under oath, a written certification, as 
     described in this subsection.
       ``(B) Emergency authorization.--If the Attorney General and 
     the Director of National Intelligence determine that an 
     emergency situation exists, immediate action by the 
     Government is required, and time does not permit the 
     completion of judicial review pursuant to subsection (i) 
     prior to the initiation of an acquisition, the Attorney 
     General and the Director of National Intelligence may 
     authorize the acquisition and shall submit to the Foreign 
     Intelligence Surveillance Court a certification under this 
     subsection as soon as possible but in no event more than 7 
     days after such determination is made.
       ``(2) Requirements.--A certification made under this 
     subsection shall--
       ``(A) attest that--
       ``(i) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a)--

       ``(I) is targeted at persons reasonably believed to be 
     located outside the United States and such procedures have 
     been submitted to the Foreign Intelligence Surveillance 
     Court; and
       ``(II) does not result in the intentional acquisition of 
     any communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States, and such procedures have been 
     submitted to the Foreign Intelligence Surveillance Court;

       ``(ii) guidelines have been adopted in accordance with 
     subsection (f) to ensure compliance with the limitations in 
     subsection (b) and to ensure that applications are filed 
     under section 104 or section 303, if required by this Act;
       ``(iii) the minimization procedures to be used with respect 
     to such acquisition--

       ``(I) meet the definition of minimization procedures under 
     section 101(h) or section 301(4) in accordance with 
     subsection (e); and
       ``(II) have been submitted to the Foreign Intelligence 
     Surveillance Court;

       ``(iv) the procedures and guidelines referred to in clauses 
     (i), (ii), and (iii) are consistent with the requirements of 
     the fourth amendment to the Constitution of the United 
     States;
       ``(v) a significant purpose of the acquisition is to obtain 
     foreign intelligence information;
       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition complies with the limitations in 
     subsection (b);
       ``(B) be supported, as appropriate, by the affidavit of any 
     appropriate official in the area of national security who 
     is--
       ``(i) appointed by the President, by and with the consent 
     of the Senate; or
       ``(ii) the head of an element of the intelligence 
     community; and
       ``(C) include--
       ``(i) an effective date for the authorization that is 
     between 30 and 60 days from the submission of the written 
     certification to the court; or
       ``(ii) if the acquisition has begun or will begin in less 
     than 30 days from the submission of the written certification 
     to the court--

       ``(I) the date the acquisition began or the effective date 
     for the acquisition;
       ``(II) a description of why implementation was required in 
     less than 30 days from the submission of the written 
     certification to the court; and
       ``(III) if the acquisition is authorized under paragraph 
     (1)(B), the basis for the determination that an emergency 
     situation exists, immediate action by the government is 
     required, and time does not permit the completion of judicial 
     review prior to the initiation of the acquisition.

       ``(3) Limitation.--A certification made under this 
     subsection is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition authorized under subsection (a) will be directed 
     or conducted.
       ``(4) Submission to the court.--The Attorney General shall 
     transmit a copy of a certification made under this 
     subsection, and any supporting affidavit, under seal to the 
     Foreign Intelligence Surveillance Court before the initiation 
     of an acquisition under this section, except in accordance 
     with paragraph (1)(B). The Attorney General shall maintain 
     such certification under security measures adopted by the 
     Chief Justice of the United States and the Attorney General, 
     in consultation with the Director of National Intelligence.
       ``(5) Review.--A certification submitted pursuant to this 
     subsection shall be subject to judicial review pursuant to 
     subsection (i).
       ``(h) Directives and Judicial Review of Directives.--
       ``(1) Authority.--Pursuant to an order issued in accordance 
     with subsection (i)(3) or a determination under subsection 
     (g)(1)(B), the Attorney General and the Director of National 
     Intelligence may direct, in writing, an electronic 
     communication service provider to--
       ``(A) immediately provide the Government with all 
     information, facilities, or assistance necessary to 
     accomplish the acquisition authorized in accordance with this 
     section in a manner that will protect the secrecy of the 
     acquisition and produce a minimum of interference with the 
     services that such electronic communication service provider 
     is providing to the target of the acquisition; and
       ``(B) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the acquisition or the aid furnished 
     that such electronic communication service provider wishes to 
     maintain.
       ``(2) Compensation.--The Government shall compensate, at 
     the prevailing rate, an electronic communication service 
     provider for

[[Page 4383]]

     providing information, facilities, or assistance pursuant to 
     paragraph (1).
       ``(3) Release from liability.--Notwithstanding any other 
     provision of law, no cause of action shall lie in any court 
     against any electronic communication service provider for 
     providing any information, facilities, or assistance in 
     accordance with a directive issued pursuant to paragraph (1).
       ``(4) Challenging of directives.--
       ``(A) Authority to challenge.--An electronic communication 
     service provider receiving a directive issued pursuant to 
     paragraph (1) may challenge the directive by filing a 
     petition with the Foreign Intelligence Surveillance Court, 
     which shall have jurisdiction to review such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign the petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Standards for review.--A judge considering a petition 
     to modify or set aside a directive may grant such petition 
     only if the judge finds that the directive does not meet the 
     requirements of this section or is otherwise unlawful.
       ``(D) Procedures for initial review.--A judge shall conduct 
     an initial review of a petition filed under subparagraph (A) 
     not later than 5 days after being assigned such petition. If 
     the judge determines that the petition does not consist of 
     claims, defenses, or other legal contentions that are 
     warranted by existing law, a nonfrivolous argument for 
     extending, modifying, or reversing existing law, or 
     establishing new law, the judge shall immediately deny the 
     petition and affirm the directive or any part of the 
     directive that is the subject of the petition and order the 
     recipient to comply with the directive or any part of it. 
     Upon making such a determination or promptly thereafter, the 
     judge shall provide a written statement for the record of the 
     reasons for a determination under this subparagraph.
       ``(E) Procedures for plenary review.--If a judge determines 
     that a petition filed under subparagraph (A) requires plenary 
     review, the judge shall affirm, modify, or set aside the 
     directive that is the subject of that petition not later than 
     30 days after being assigned the petition. If the judge does 
     not set aside the directive, the judge shall immediately 
     affirm or modify the directive and order the recipient to 
     comply with the directive in its entirety or as modified. The 
     judge shall provide a written statement for the records of 
     the reasons for a determination under this subparagraph.
       ``(F) Continued effect.--Any directive not explicitly 
     modified or set aside under this paragraph shall remain in 
     full effect.
       ``(G) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(5) Enforcement of directives.--
       ``(A) Order to compel.--If an electronic communication 
     service provider fails to comply with a directive issued 
     pursuant to paragraph (1), the Attorney General may file a 
     petition for an order to compel the electronic communication 
     service provider to comply with the directive with the 
     Foreign Intelligence Surveillance Court, which shall have 
     jurisdiction to review such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign a petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Procedures for review.--A judge considering a 
     petition filed under subparagraph (A) shall issue an order 
     requiring the electronic communication service provider to 
     comply with the directive or any part of it, as issued or as 
     modified not later than 30 days after being assigned the 
     petition if the judge finds that the directive meets the 
     requirements of this section and is otherwise lawful. The 
     judge shall provide a written statement for the record of the 
     reasons for a determination under this paragraph.
       ``(D) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(E) Process.--Any process under this paragraph may be 
     served in any judicial district in which the electronic 
     communication service provider may be found.
       ``(6) Appeal.--
       ``(A) Appeal to the court of review.--The Government or an 
     electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition with the Foreign Intelligence Surveillance Court of 
     Review for review of a decision issued pursuant to paragraph 
     (4) or (5). The Court of Review shall have jurisdiction to 
     consider such a petition and shall provide a written 
     statement for the record of the reasons for a decision under 
     this paragraph.
       ``(B) Certiorari to the supreme court.--The Government or 
     an electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition for a writ of certiorari for review of the decision 
     of the Court of Review issued under subparagraph (A). The 
     record for such review shall be transmitted under seal to the 
     Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.
       ``(i) Judicial Review of Certifications and Procedures.--
       ``(1) In general.--
       ``(A) Review by the foreign intelligence surveillance 
     court.--The Foreign Intelligence Surveillance Court shall 
     have jurisdiction to review any certification submitted 
     pursuant to subsection (g) and the targeting and minimization 
     procedures required by subsections (d) and (e).
       ``(B) Time period for review.--The Court shall review the 
     certification submitted pursuant to subsection (g) and the 
     targeting and minimization procedures required by subsections 
     (d) and (e) and approve or deny an order under this 
     subsection not later than 30 days after the date on which a 
     certification is submitted.
       ``(2) Review.--The Court shall review the following:
       ``(A) Certifications.--A certification submitted pursuant 
     to subsection (g) to determine whether the certification 
     contains all the required elements.
       ``(B) Targeting procedures.--The targeting procedures 
     required by subsection (d) to assess whether the procedures 
     are reasonably designed to ensure that the acquisition 
     authorized under subsection (a) is limited to the targeting 
     of persons reasonably believed to be located outside the 
     United States and does not result in the intentional 
     acquisition of any communication as to which the sender and 
     all intended recipients are known at the time of the 
     acquisition to be located in the United States.
       ``(C) Minimization procedures.--The minimization procedures 
     required by subsection (e) to assess whether such procedures 
     meet the definition of minimization procedures under section 
     101(h) or section 301(4) in accordance with subsection (e).
       ``(3) Orders.--
       ``(A) Approval.--If the Court finds that a certification 
     submitted pursuant to subsection (g) contains all of the 
     required elements and that the procedures required by 
     subsections (d) and (e) are consistent with the requirements 
     of those subsections and with the fourth amendment to the 
     Constitution of the United States, the Court shall enter an 
     order approving the certification and the use of the 
     procedures for the acquisition.
       ``(B) Correction of deficiencies.--If the Court finds that 
     a certification submitted pursuant to subsection (g) does not 
     contain all of the required elements or that the procedures 
     required by subsections (d) and (e) are not consistent with 
     the requirements of those subsections or the fourth amendment 
     to the Constitution of the United States--
       ``(i) in the case of a certification submitted in 
     accordance with subsection (g)(1)(A), the Court shall deny 
     the order, identify any deficiency in the certification or 
     procedures, and provide the Government with an opportunity to 
     correct such deficiency; and
       ``(ii) in the case of a certification submitted in 
     accordance with subsection (g)(1)(B), the Court shall issue 
     an order directing the Government to, at the Government's 
     election and to the extent required by the Court's order--

       ``(I) correct any deficiency identified by the Court not 
     later than 30 days after the date the Court issues the order; 
     or
       ``(II) cease the acquisition authorized under subsection 
     (g)(1)(B).

       ``(C) Requirement for written statement.--In support of its 
     orders under this subsection, the Court shall provide, 
     simultaneously with the orders, for the record a written 
     statement of its reasons.
       ``(4) Appeal.--
       ``(A) Appeal to the court of review.--The Government may 
     appeal any order under this section to the Foreign 
     Intelligence Surveillance Court of Review, which shall have 
     jurisdiction to review such order. For any decision 
     affirming, reversing, or modifying an order of the Foreign 
     Intelligence Surveillance Court, the Court of Review shall 
     provide for the record a written statement of its reasons.
       ``(B) Continuation of acquisition pending rehearing or 
     appeal.--Any acquisition affected by an order under paragraph 
     (3)(B)(ii) may continue--
       ``(i) during the pendency of any rehearing of the order by 
     the Court en banc; and
       ``(ii) if the Government appeals an order under this 
     section, subject to subparagraph (C), until the Court of 
     Review enters an order under subparagraph (A).
       ``(C) Implementation of emergency authority pending 
     appeal.--Not later than 60 days after the filing of an appeal 
     of an order issued under paragraph (3)(B)(ii) directing the 
     correction of a deficiency, the Court of Review shall 
     determine, and enter a corresponding order regarding whether 
     all or any part of the correction order, as issued or 
     modified, shall be implemented during the pendency of the 
     appeal. The Government shall conduct an acquisition affected 
     by such order issued under paragraph (3)(B)(ii) in accordance 
     with an order issued under this subparagraph or shall cease 
     such acquisition.
       ``(D) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of a 
     decision of the Court of Review issued under subparagraph 
     (A). The record for such review shall be transmitted under 
     seal to the Supreme Court of the United States, which shall 
     have jurisdiction to review such decision.

[[Page 4384]]

       ``(5) Schedule.--
       ``(A) Replacement of authorizations in effect.--If the 
     Attorney General and the Director of National Intelligence 
     seek to replace an authorization issued pursuant to section 
     105B of the Foreign Intelligence Surveillance Act of 1978, as 
     added by section 2 of the Protect America Act of 2007 (Public 
     Law 110-55), the Attorney General and the Director of 
     National Intelligence shall, to the extent practicable, 
     submit to the Court a certification under subsection (g) and 
     the procedures required by subsections (d), (e), and (f) at 
     least 30 days before the expiration of such authorization.
       ``(B) Reauthorization of authorizations in effect.--If the 
     Attorney General and the Director of National Intelligence 
     seek to replace an authorization issued pursuant to this 
     section, the Attorney General and the Director of National 
     Intelligence shall, to the extent practicable, submit to the 
     Court a certification under subsection (g) and the procedures 
     required by subsections (d), (e), and (f) at least 30 days 
     prior to the expiration of such authorization.
       ``(C) Consolidated submissions.--The Attorney General and 
     Director of National Intelligence shall, to the extent 
     practicable, annually submit to the Court a consolidation 
     of--
       ``(i) certifications under subsection (g) for 
     reauthorization of authorizations in effect;
       ``(ii) the procedures required by subsections (d), (e), and 
     (f); and
       ``(iii) the annual review required by subsection (l)(3) for 
     the preceding year.
       ``(D) Timing of reviews.--The Attorney General and the 
     Director of National Intelligence shall, to the extent 
     practicable, schedule the completion of the annual review 
     under subsection (l)(3) and a semiannual assessment under 
     subsection (l)(1) so that they may be submitted to the Court 
     at the time of the consolidated submission under subparagraph 
     (C).
       ``(E) Construction.--The requirements of subparagraph (C) 
     shall not be construed to preclude the Attorney General and 
     the Director of National Intelligence from submitting 
     certifications for additional authorizations at other times 
     during the year as necessary.
       ``(6) Compliance.--At or before the end of the period of 
     time for which a certification submitted pursuant to 
     subsection (g) and procedures required by subsection (d) and 
     (e) are approved by an order under this section, the Foreign 
     Intelligence Surveillance Court may assess compliance with 
     the minimization procedures required by subsection (e) by 
     reviewing the circumstances under which information 
     concerning United States persons was acquired, retained, or 
     disseminated.
       ``(j) Judicial Proceedings.--
       ``(1) Expedited proceedings.--Judicial proceedings under 
     this section shall be conducted as expeditiously as possible.
       ``(2) Time limits.--A time limit for a judicial decision in 
     this section shall apply unless the Court, the Court of 
     Review, or any judge of either the Court or the Court of 
     Review, by order for reasons stated, extends that time for 
     good cause.
       ``(k) Maintenance and Security of Records and 
     Proceedings.--
       ``(1) Standards.--The Foreign Intelligence Surveillance 
     Court shall maintain a record of a proceeding under this 
     section, including petitions filed, orders granted, and 
     statements of reasons for decision, under security measures 
     adopted by the Chief Justice of the United States, in 
     consultation with the Attorney General and the Director of 
     National Intelligence.
       ``(2) Filing and review.--All petitions under this section 
     shall be filed under seal. In any proceedings under this 
     section, the court shall, upon request of the Government, 
     review ex parte and in camera any Government submission, or 
     portions of a submission, which may include classified 
     information.
       ``(3) Retention of records.--The Director of National 
     Intelligence and the Attorney General shall retain a 
     directive made or an order granted under this section for a 
     period of not less than 10 years from the date on which such 
     directive or such order is made.
       ``(l) Assessments and Reviews.--
       ``(1) Semiannual assessment.--Not less frequently than once 
     every 6 months, the Attorney General and Director of National 
     Intelligence shall assess compliance with the procedures and 
     guidelines required by subsections (d), (e), and (f) and 
     shall submit each assessment to--
       ``(A) the congressional intelligence committees;
       ``(B) the Committees on the Judiciary of the House of 
     Representatives and the Senate; and
       ``(C) the Foreign Intelligence Surveillance Court.
       ``(2) Agency assessment.--The Inspectors General of the 
     Department of Justice and of each element of the intelligence 
     community authorized to acquire foreign intelligence 
     information under subsection (a), with respect to such 
     Department or such element--
       ``(A) are authorized to review compliance with the 
     procedures and guidelines required by subsections (d), (e), 
     and (f);
       ``(B) with respect to acquisitions authorized under 
     subsection (a), shall review the disseminated intelligence 
     reports containing a reference to a United States person 
     identity and the number of United States person identities 
     subsequently disseminated by the element concerned in 
     response to requests for identities that were not referred to 
     by name or title in the original reporting;
       ``(C) with respect to acquisitions authorized under 
     subsection (a), shall review the targets that were later 
     determined to be located in the United States and, to the 
     extent possible, whether their communications were reviewed; 
     and
       ``(D) shall provide each such review to--
       ``(i) the Attorney General;
       ``(ii) the Director of National Intelligence;
       ``(iii) the congressional intelligence committees;
       ``(iv) the Committees on the Judiciary of the House of 
     Representatives and the Senate; and
       ``(v) the Foreign Intelligence Surveillance Court.
       ``(3) Annual review.--
       ``(A) Requirement to conduct.--The head of each element of 
     the intelligence community conducting an acquisition 
     authorized under subsection (a) shall conduct an annual 
     review to determine whether there is reason to believe that 
     foreign intelligence information has been or will be obtained 
     from the acquisition. The annual review shall provide, with 
     respect to such acquisitions authorized under subsection 
     (a)--
       ``(i) the number and nature of disseminated intelligence 
     reports containing a reference to a United States person 
     identity;
       ``(ii) the number and nature of United States person 
     identities subsequently disseminated by that element in 
     response to requests for identities that were not referred to 
     by name or title in the original reporting;
       ``(iii) the number of targets that were later determined to 
     be located in the United States and, to the extent possible, 
     whether their communications were reviewed; and
       ``(iv) a description of any procedures developed by the 
     head of such element of the intelligence community and 
     approved by the Director of National Intelligence to assess, 
     in a manner consistent with national security, operational 
     requirements and the privacy interests of United States 
     persons, the extent to which the acquisitions authorized 
     under subsection (a) acquire the communications of United 
     States persons, and the results of any such assessment.
       ``(B) Use of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall use each such review to evaluate the 
     adequacy of the minimization procedures utilized by such 
     element or the application of the minimization procedures to 
     a particular acquisition authorized under subsection (a).
       ``(C) Provision of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall provide such review to--
       ``(i) the Foreign Intelligence Surveillance Court;
       ``(ii) the Attorney General;
       ``(iii) the Director of National Intelligence;
       ``(iv) the congressional intelligence committees; and
       ``(v) the Committees on the Judiciary of the House of 
     Representatives and the Senate.
       ``(m) Construction.--Nothing in this Act shall be construed 
     to require an application under section 104 for an 
     acquisition that is targeted in accordance with this section 
     at a person reasonably believed to be located outside the 
     United States.

     ``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF 
                   UNITED STATES PERSONS OUTSIDE THE UNITED 
                   STATES.

       ``(a) Jurisdiction of the Foreign Intelligence Surveillance 
     Court.--
       ``(1) In general.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to review an application and 
     enter an order approving the targeting of a United States 
     person reasonably believed to be located outside the United 
     States to acquire foreign intelligence information if the 
     acquisition constitutes electronic surveillance or the 
     acquisition of stored electronic communications or stored 
     electronic data that requires an order under this Act and 
     such acquisition is conducted within the United States.
       ``(2) Limitation.--If a United States person targeted under 
     this subsection is reasonably believed to be located in the 
     United States during the pendency of an order issued pursuant 
     to subsection (c), such acquisition shall cease unless 
     authority, other than under this section, is obtained 
     pursuant to this Act or the targeted United States person is 
     again reasonably believed to be located outside the United 
     States during the pendency of an order issued pursuant to 
     subsection (c).
       ``(b) Application.--
       ``(1) In general.--Each application for an order under this 
     section shall be made by a Federal officer in writing upon 
     oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application, as set forth in this 
     section, and shall include--
       ``(A) the identity of the Federal officer making the 
     application;

[[Page 4385]]

       ``(B) the identity, if known, or a description of the 
     United States person who is the target of the acquisition;
       ``(C) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(D) a statement of proposed minimization procedures 
     that--
       ``(i) in the case of electronic surveillance, meet the 
     definition of minimization procedures in section 101(h); and
       ``(ii) in the case of a physical search, meet the 
     definition of minimization procedures in section 301(4);
       ``(E) a description of the nature of the information sought 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(F) a certification made by the Attorney General or an 
     official specified in section 104(a)(6) that--
       ``(i) the certifying official deems the information sought 
     to be foreign intelligence information;
       ``(ii) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(iii) such information cannot reasonably be obtained by 
     normal investigative techniques;
       ``(iv) identifies the type of foreign intelligence 
     information being sought according to the categories 
     described in each subparagraph of section 101(e); and
       ``(v) includes a statement of the basis for the 
     certification that--

       ``(I) the information sought is the type of foreign 
     intelligence information designated; and
       ``(II) such information cannot reasonably be obtained by 
     normal investigative techniques;

       ``(G) a summary statement of the means by which the 
     acquisition will be conducted and whether physical entry is 
     required to effect the acquisition;
       ``(H) the identity of any electronic communication service 
     provider necessary to effect the acquisition, provided, 
     however, that the application is not required to identify the 
     specific facilities, places, premises, or property at which 
     the acquisition authorized under this section will be 
     directed or conducted;
       ``(I) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(J) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(2) Other requirements of the attorney general.--The 
     Attorney General may require any other affidavit or 
     certification from any other officer in connection with the 
     application.
       ``(3) Other requirements of the judge.--The judge may 
     require the applicant to furnish such other information as 
     may be necessary to make the findings required by subsection 
     (c)(1).
       ``(c) Order.--
       ``(1) Findings.--Upon an application made pursuant to 
     subsection (b), the Foreign Intelligence Surveillance Court 
     shall enter an ex parte order as requested or as modified by 
     the Court approving the acquisition if the Court finds that--
       ``(A) the application has been made by a Federal officer 
     and approved by the Attorney General;
       ``(B) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(C) the proposed minimization procedures--
       ``(i) in the case of electronic surveillance, meet the 
     definition of minimization procedures in section 101(h); and
       ``(ii) in the case of a physical search, meet the 
     definition of minimization procedures in section 301(4);
       ``(D) the application that has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification or certifications are not clearly erroneous 
     on the basis of the statement made under subsection 
     (b)(1)(F)(v) and any other information furnished under 
     subsection (b)(3).
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of paragraph (1)(B), a 
     judge having jurisdiction under subsection (a)(1) may 
     consider past activities of the target and facts and 
     circumstances relating to current or future activities of the 
     target. No United States person may be considered a foreign 
     power, agent of a foreign power, or officer or employee of a 
     foreign power solely upon the basis of activities protected 
     by the first amendment to the Constitution of the United 
     States.
       ``(3) Review.--
       ``(A) Limitation on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1).
       ``(B) Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause under paragraph 
     (1)(B), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     subparagraph pursuant to subsection (f).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the proposed minimization procedures referred 
     to in paragraph (1)(C) do not meet the definition of 
     minimization procedures as required under such paragraph the 
     judge shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     subparagraph pursuant to subsection (f).
       ``(D) Review of certification.--If the judge determines 
     that an application under subsection (b) does not contain all 
     of the required elements, or that the certification or 
     certifications are clearly erroneous on the basis of the 
     statement made under subsection (b)(1)(F)(v) and any other 
     information furnished under subsection (b)(3), the judge 
     shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     subparagraph pursuant to subsection (f).
       ``(4) Specifications.--An order approving an acquisition 
     under this subsection shall specify--
       ``(A) the identity, if known, or a description of the 
     United States person who is the target of the acquisition 
     identified or described in the application pursuant to 
     subsection (b)(1)(B);
       ``(B) if provided in the application pursuant to subsection 
     (b)(1)(H), the nature and location of each of the facilities 
     or places at which the acquisition will be directed;
       ``(C) the nature of the information sought to be acquired 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(D) the means by which the acquisition will be conducted 
     and whether physical entry is required to effect the 
     acquisition; and
       ``(E) the period of time during which the acquisition is 
     approved.
       ``(5) Directions.--An order approving an acquisition under 
     this subsection shall direct--
       ``(A) that the minimization procedures referred to in 
     paragraph (1)(C), as approved or modified by the Court, be 
     followed;
       ``(B) an electronic communication service provider to 
     provide to the Government forthwith all information, 
     facilities, or assistance necessary to accomplish the 
     acquisition authorized under such order in a manner that will 
     protect the secrecy of the acquisition and produce a minimum 
     of interference with the services that such electronic 
     communication service provider is providing to the target of 
     the acquisition;
       ``(C) an electronic communication service provider to 
     maintain under security procedures approved by the Attorney 
     General any records concerning the acquisition or the aid 
     furnished that such electronic communication service provider 
     wishes to maintain; and
       ``(D) that the Government compensate, at the prevailing 
     rate, such electronic communication service provider for 
     providing such information, facilities, or assistance.
       ``(6) Duration.--An order approved under this subsection 
     shall be effective for a period not to exceed 90 days and 
     such order may be renewed for additional 90-day periods upon 
     submission of renewal applications meeting the requirements 
     of subsection (b).
       ``(7) Compliance.--At or prior to the end of the period of 
     time for which an acquisition is approved by an order or 
     extension under this section, the judge may assess compliance 
     with the minimization procedures referred to in paragraph 
     (1)(C) by reviewing the circumstances under which information 
     concerning United States persons was acquired, retained, or 
     disseminated.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision of this Act, if the 
     Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     authorizing such acquisition can with due diligence be 
     obtained, and
       ``(B) the factual basis for issuance of an order under this 
     subsection to approve such acquisition exists,

     the Attorney General may authorize such acquisition if a 
     judge having jurisdiction under subsection (a)(1) is informed 
     by the Attorney General, or a designee of the Attorney 
     General, at the time of such authorization that the decision 
     has been made to conduct such

[[Page 4386]]

     acquisition and if an application in accordance with this 
     section is made to a judge of the Foreign Intelligence 
     Surveillance Court as soon as practicable, but not more than 
     7 days after the Attorney General authorizes such 
     acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes an acquisition under paragraph (1), the Attorney 
     General shall require that the minimization procedures 
     referred to in subsection (c)(1)(C) for the issuance of a 
     judicial order be followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of a judicial order approving an acquisition 
     authorized under paragraph (1), such acquisition shall 
     terminate when the information sought is obtained, when the 
     application for the order is denied, or after the expiration 
     of 7 days from the time of authorization by the Attorney 
     General, whichever is earliest.
       ``(4) Use of information.--If an application for approval 
     submitted pursuant to paragraph (1) is denied, or in any 
     other case where the acquisition is terminated and no order 
     is issued approving the acquisition, no information obtained 
     or evidence derived from such acquisition, except under 
     circumstances in which the target of the acquisition is 
     determined not to be a United States person, shall be 
     received in evidence or otherwise disclosed in any trial, 
     hearing, or other proceeding in or before any court, grand 
     jury, department, office, agency, regulatory body, 
     legislative committee, or other authority of the United 
     States, a State, or political subdivision thereof, and no 
     information concerning any United States person acquired from 
     such acquisition shall subsequently be used or disclosed in 
     any other manner by Federal officers or employees without the 
     consent of such person, except with the approval of the 
     Attorney General if the information indicates a threat of 
     death or serious bodily harm to any person.
       ``(e) Release From Liability.--Notwithstanding any other 
     provision of law, no cause of action shall lie in any court 
     against any electronic communication service provider for 
     providing any information, facilities, or assistance in 
     accordance with an order or request for emergency assistance 
     issued pursuant to subsections (c) or (d).
       ``(f) Appeal.--
       ``(1) Appeal to the foreign intelligence surveillance court 
     of review.--The Government may file an appeal with the 
     Foreign Intelligence Surveillance Court of Review for review 
     of an order issued pursuant to subsection (c). The Court of 
     Review shall have jurisdiction to consider such appeal and 
     shall provide a written statement for the record of the 
     reasons for a decision under this paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of a 
     decision of the Court of Review under paragraph (1). The 
     record for such review shall be transmitted under seal to the 
     Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.
       ``(g) Construction.--Nothing in this Act shall be construed 
     to require an application under section 104 for an 
     acquisition that is targeted in accordance with this section 
     at a person reasonably believed to be located outside the 
     United States.

     ``SEC. 704. OTHER ACQUISITIONS TARGETING UNITED STATES 
                   PERSONS OUTSIDE THE UNITED STATES.

       ``(a) Jurisdiction and Scope.--
       ``(1) Jurisdiction.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order pursuant to 
     subsection (c).
       ``(2) Scope.--No department or agency of the Federal 
     Government may intentionally target, for the purpose of 
     acquiring foreign intelligence information, a United States 
     person reasonably believed to be located outside the United 
     States under circumstances in which the targeted United 
     States person has a reasonable expectation of privacy and a 
     warrant would be required if the acquisition were conducted 
     inside the United States for law enforcement purposes, unless 
     a judge of the Foreign Intelligence Surveillance Court has 
     entered an order with respect to such targeted United States 
     person or the Attorney General has authorized an emergency 
     acquisition pursuant to subsection (c) or (d) or any other 
     provision of this Act.
       ``(3) Limitations.--
       ``(A) Moving or misidentified targets.--If a targeted 
     United States person is reasonably believed to be in the 
     United States during the pendency of an order issued pursuant 
     to subsection (c), acquisitions relating to such targeted 
     United States Person shall cease unless authority is obtained 
     pursuant to this Act or the targeted United States person is 
     again reasonably believed to be located outside the United 
     States during the pendency of such order.
       ``(B) Applicability.--If an acquisition is to be conducted 
     inside the United States and could be authorized under 
     section 703, the acquisition may only be conducted if 
     authorized under section 703 or in accordance with another 
     provision of this Act other than this section.
       ``(b) Application.--Each application for an order under 
     this section shall be made by a Federal officer in writing 
     upon oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application as set forth in this section 
     and shall include--
       ``(1) the identity of the Federal officer making the 
     application;
       ``(2) the identity, if known, or a description of the 
     specific United States person who is the target of the 
     acquisition;
       ``(3) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(A) a person reasonably believed to be located outside 
     the United States; and
       ``(B) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(4) a statement of proposed minimization procedures 
     that--
       ``(A) in the case of electronic surveillance, meet the 
     definition of minimization procedures in section 101(h); and
       ``(B) in the case of a physical search, meet the definition 
     of minimization procedures in section 301(4);
       ``(5) a certification made by the Attorney General, an 
     official specified in section 104(a)(6), or the head of an 
     element of the intelligence community that--
       ``(A) the certifying official deems the information sought 
     to be foreign intelligence information; and
       ``(B) a significant purpose of the acquisition is to obtain 
     foreign intelligence information;
       ``(6) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(7) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(c) Order.--
       ``(1) Findings.--Upon an application made pursuant to 
     subsection (b), the Foreign Intelligence Surveillance Court 
     shall enter an ex parte order as requested or as modified by 
     the Court if the Court finds that--
       ``(A) the application has been made by a Federal officer 
     and approved by the Attorney General;
       ``(B) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(C) the proposed minimization procedures--
       ``(i) in the case of electronic surveillance, meet the 
     definition of minimization procedures in section 101(h); and
       ``(ii) in the case of a physical search, meet the 
     definition of minimization procedures in section 301(4);
       ``(D) the application that has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification provided under subsection (b)(5) is not 
     clearly erroneous on the basis of the information furnished 
     under subsection (b).
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under 
     paragraph (1)(B), a judge having jurisdiction under 
     subsection (a)(1) may consider past activities of the target 
     and facts and circumstances relating to current or future 
     activities of the target. No United States person may be 
     considered a foreign power, agent of a foreign power, or 
     officer or employee of a foreign power solely upon the basis 
     of activities protected by the first amendment to the 
     Constitution of the United States.
       ``(3) Review.--
       ``(A) Limitations on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1). The 
     judge shall not have jurisdiction to review the means by 
     which an acquisition under this section may be conducted.
       ``(B) Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause under paragraph 
     (1)(B), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (e).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the proposed minimization procedures referred 
     to in paragraph (1)(C) do not meet the definition of 
     minimization procedures as required under such paragraph, the 
     judge shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (e).
       ``(D) Scope of review of certification.--If the judge 
     determines that an application under subsection (b) does not 
     contain all the required elements, or that the certification

[[Page 4387]]

     provided under subsection (b)(5) is clearly erroneous on the 
     basis of the information furnished under subsection (b), the 
     judge shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (e).
       ``(4) Duration.--An order under this paragraph shall be 
     effective for a period not to exceed 90 days and such order 
     may be renewed for additional 90-day periods upon submission 
     of renewal applications meeting the requirements of 
     subsection (b).
       ``(5) Compliance.--At or prior to the end of the period of 
     time for which an order or extension is granted under this 
     section, the judge may assess compliance with the 
     minimization procedures referred to in paragraph (1)(C) by 
     reviewing the circumstances under which information 
     concerning United States persons was disseminated, provided 
     that the judge may not inquire into the circumstances 
     relating to the conduct of the acquisition.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision of this section, if the 
     Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     under that subsection may, with due diligence, be obtained, 
     and
       ``(B) the factual basis for the issuance of an order under 
     this section exists,

     the Attorney General may authorize such acquisition if a 
     judge having jurisdiction under subsection (a)(1) is informed 
     by the Attorney General or a designee of the Attorney General 
     at the time of such authorization that the decision has been 
     made to conduct such acquisition and if an application in 
     accordance with this section is made to a judge of the 
     Foreign Intelligence Surveillance Court as soon as 
     practicable, but not more than 7 days after the Attorney 
     General authorizes such acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes an emergency acquisition under paragraph (1), the 
     Attorney General shall require that the minimization 
     procedures referred to in subsection (c)(1)(C) be followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of an order under subsection (c), the acquisition 
     authorized under paragraph (1) shall terminate when the 
     information sought is obtained, if the application for the 
     order is denied, or after the expiration of 7 days from the 
     time of authorization by the Attorney General, whichever is 
     earliest.
       ``(4) Use of information.--If an application submitted 
     pursuant to paragraph (1) is denied, or in any other case 
     where an acquisition under this section is terminated and no 
     order with respect to the target of the acquisition is issued 
     under subsection (c), no information obtained or evidence 
     derived from such acquisition, except under circumstances in 
     which the target of the acquisition is determined not to be a 
     United States person, shall be received in evidence or 
     otherwise disclosed in any trial, hearing, or other 
     proceeding in or before any court, grand jury, department, 
     office, agency, regulatory body, legislative committee, or 
     other authority of the United States, a State, or political 
     subdivision thereof, and no information concerning any United 
     States person acquired from such acquisition shall 
     subsequently be used or disclosed in any other manner by 
     Federal officers or employees without the consent of such 
     person, except with the approval of the Attorney General if 
     the information indicates a threat of death or serious bodily 
     harm to any person.
       ``(e) Appeal.--
       ``(1) Appeal to the court of review.--The Government may 
     file an appeal with the Foreign Intelligence Surveillance 
     Court of Review for review of an order issued pursuant to 
     subsection (c). The Court of Review shall have jurisdiction 
     to consider such appeal and shall provide a written statement 
     for the record of the reasons for a decision under this 
     paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of a 
     decision of the Court of Review issued under paragraph (1). 
     The record for such review shall be transmitted under seal to 
     the Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.

     ``SEC. 705. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.

       ``(a) Joint Applications and Orders.--If an acquisition 
     targeting a United States person under section 703 or section 
     704 is proposed to be conducted both inside and outside the 
     United States, a judge having jurisdiction under section 
     703(a)(1) or section 704(a)(1) may issue simultaneously, upon 
     the request of the Government in a joint application 
     complying with the requirements of section 703(b) and section 
     704(b), orders under section 703(c) and section 704(c), as 
     appropriate.
       ``(b) Concurrent Authorization.--
       ``(1) Electronic surveillance.--If an order authorizing 
     electronic surveillance has been obtained under section 105 
     and that order is still in effect, during the pendency of 
     that order the Attorney General may authorize, without an 
     order under section 703 or 704, electronic surveillance for 
     the purpose of acquiring foreign intelligence information 
     targeting that United States person while such person is 
     reasonably believed to be located outside the United States.
       ``(2) Physical search.--If an order authorizing a physical 
     search has been obtained under section 304 and that order is 
     still in effect, during the pendency of that order the 
     Attorney General may authorize, without an order under 
     section 703 or 704, a physical search for the purpose of 
     acquiring foreign intelligence information targeting that 
     United States person while such person is reasonably believed 
     to be located outside the United States.

     ``SEC. 706. USE OF INFORMATION ACQUIRED UNDER TITLE VII.

       ``Information acquired pursuant to section 702 or 703 shall 
     be considered information acquired from an electronic 
     surveillance pursuant to title I for purposes of section 106.

     ``SEC. 707. CONGRESSIONAL OVERSIGHT.

       ``(a) Semiannual Report.--Not less frequently than once 
     every 6 months, the Attorney General shall fully inform, in a 
     manner consistent with national security, the congressional 
     intelligence committees and the Committees on the Judiciary 
     of the Senate and the House of Representatives, concerning 
     the implementation of this title.
       ``(b) Content.--Each report made under subsection (a) shall 
     include--
       ``(1) with respect to section 702--
       ``(A) any certifications made under section 702(g) during 
     the reporting period;
       ``(B) with respect to each certification made under 
     paragraph (1)(B) of such section, the reasons for exercising 
     the authority under such paragraph;
       ``(C) any directives issued under section 702(h) during the 
     reporting period;
       ``(D) a description of the judicial review during the 
     reporting period of any such certifications and targeting and 
     minimization procedures adopted pursuant to subsections (d) 
     and (e) of section 702 utilized with respect to such 
     acquisition, including a copy of any order or pleading in 
     connection with such review that contains a significant legal 
     interpretation of the provisions of section 702;
       ``(E) any actions taken to challenge or enforce a directive 
     under paragraph (4) or (5) of section 702(h);
       ``(F) any compliance reviews conducted by the Attorney 
     General or the Director of National Intelligence of 
     acquisitions authorized under subsection 702(a);
       ``(G) a description of any incidents of noncompliance with 
     a directive issued by the Attorney General and the Director 
     of National Intelligence under subsection 702(h), including--
       ``(i) incidents of noncompliance by an element of the 
     intelligence community with procedures and guidelines adopted 
     pursuant to subsections (d), (e), and (f) of section 702; and
       ``(ii) incidents of noncompliance by a specified person to 
     whom the Attorney General and Director of National 
     Intelligence issued a directive under subsection 702(h); and
       ``(H) any procedures implementing section 702;
       ``(2) with respect to section 703--
       ``(A) the total number of applications made for orders 
     under section 703(b);
       ``(B) the total number of such orders--
       ``(i) granted;
       ``(ii) modified; or
       ``(iii) denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under section 703(d) and the total 
     number of subsequent orders approving or denying such 
     acquisitions; and
       ``(3) with respect to section 704--
       ``(A) the total number of applications made for orders 
     under 704(b);
       ``(B) the total number of such orders--
       ``(i) granted;
       ``(ii) modified; or
       ``(iii) denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under subsection 704(d) and the total 
     number of subsequent orders approving or denying such 
     applications.

     ``SEC. 708. SAVINGS PROVISION.

       ``Nothing in this title shall be construed to limit the 
     authority of the Federal Government to seek an order or 
     authorization under, or otherwise engage in any activity that 
     is authorized under, any other title of this Act.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et. seq.) is amended--
       (1) by striking the item relating to title VII;
       (2) by striking the item relating to section 701; and
       (3) by adding at the end the following:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

``Sec. 701. Definitions.
``Sec. 702. Procedures for targeting certain persons outside the United 
              States other than United States persons.

[[Page 4388]]

``Sec. 703. Certain acquisitions inside the United States of United 
              States persons outside the United States.
``Sec. 704. Other acquisitions targeting United States persons outside 
              the United States.
``Sec. 705. Joint applications and concurrent authorizations.
``Sec. 706. Use of information acquired under title VII.
``Sec. 707. Congressional oversight.
``Sec. 708. Savings provision.''.
       (c) Technical and Conforming Amendments.--
       (1) Title 18, united states code.--Section 
     2511(2)(a)(ii)(A) of title 18, United States Code, is amended 
     by inserting ``or a court order pursuant to section 704 of 
     the Foreign Intelligence Surveillance Act of 1978'' after 
     ``assistance''.
       (2) Foreign intelligence surveillance act of 1978.--Section 
     601(a)(1) of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1871(a)(1)) is amended--
       (A) in subparagraph (C), by striking ``and''; and
       (B) by adding at the end the following new subparagraphs:
       ``(E) acquisitions under section 703; and
       ``(F) acquisitions under section 704;''.

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF CERTAIN 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:


  ``statement of exclusive means by which electronic surveillance and 
        interception of certain communications may be conducted

       ``Sec. 112.  (a) Except as provided in subsection (b), the 
     procedures of chapters 119, 121, and 206 of title 18, United 
     States Code, and this Act shall be the exclusive means by 
     which electronic surveillance and the interception of 
     domestic wire, oral, or electronic communications may be 
     conducted.
       ``(b) Only an express statutory authorization for 
     electronic surveillance or the interception of domestic wire, 
     oral, or electronic communications, other than as an 
     amendment to this Act or chapters 119, 121, or 206 of title 
     18, United States Code, shall constitute an additional 
     exclusive means for the purpose of subsection (a).''.
       (b) Offense.--Section 109(a) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by 
     striking ``authorized by statute'' each place it appears in 
     such section and inserting ``authorized by this Act, chapter 
     119, 121, or 206 of title 18, United States Code, or any 
     express statutory authorization that is an additional 
     exclusive means for conducting electronic surveillance under 
     section 112.''; and
       (c) Conforming Amendments.--
       (1) Title 18, united states code.--Section 2511(2)(a) of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(iii) If a certification under subparagraph (ii)(B) for 
     assistance to obtain foreign intelligence information is 
     based on statutory authority, the certification shall 
     identify the specific statutory provision, and shall certify 
     that the statutory requirements have been met.''; and
       (2) Table of contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by inserting after the 
     item relating to section 111 the following new item:

``Sec. 112. Statement of exclusive means by which electronic 
              surveillance and interception of certain communications 
              may be conducted.''.

     SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER 
                   THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
                   1978.

       (a) Inclusion of Certain Orders in Semiannual Reports of 
     Attorney General.--Subsection (a)(5) of section 601 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1871) is amended by striking ``(not including orders)'' and 
     inserting ``, orders,''.
       (b) Reports by Attorney General on Certain Other Orders.--
     Such section 601 is further amended by adding at the end the 
     following:
       ``(c) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings, applications, or memoranda of 
     law associated with such decision, order, or opinion, not 
     later than 45 days after such decision, order, or opinion is 
     issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     any pleadings, applications, or memoranda of law associated 
     with such decision, order, or opinion, that was issued during 
     the 5-year period ending on the date of the enactment of the 
     FISA Amendments Act of 2008 and not previously submitted in a 
     report under subsection (a).
       ``(d) Protection of National Security.--The Attorney 
     General, in consultation with the Director of National 
     Intelligence, may authorize redactions of materials described 
     in subsection (c) that are provided to the committees of 
     Congress referred to in subsection (a), if such redactions 
     are necessary to protect the national security of the United 
     States and are limited to sensitive sources and methods 
     information or the identities of targets.''.
       (c) Definitions.--Such section 601, as amended by 
     subsections (a) and (b), is further amended by adding at the 
     end the following:
       ``(e) Definitions.--In this section:
       ``(1) Foreign intelligence surveillance court.--The term 
     `Foreign Intelligence Surveillance Court' means the court 
     established by section 103(a).
       ``(2) Foreign intelligence surveillance court of review.--
     The term `Foreign Intelligence Surveillance Court of Review' 
     means the court established by section 103(b).''.

     SEC. 104. APPLICATIONS FOR COURT ORDERS.

       Section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804) is amended--
       (1) in subsection (a)--
       (A) by striking paragraphs (2) and (11);
       (B) by redesignating paragraphs (3) through (10) as 
     paragraphs (2) through (9), respectively;
       (C) in paragraph (5), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed'';
       (D) in paragraph (7), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``statement of'' and inserting 
     ``summary statement of'';
       (E) in paragraph (8), as redesignated by subparagraph (B) 
     of this paragraph, by adding ``and'' at the end; and
       (F) in paragraph (9), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``; and'' and inserting a 
     period;
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as 
     subsections (b) through (d), respectively; and
       (4) in paragraph (1)(A) of subsection (d), as redesignated 
     by paragraph (3) of this subsection, by striking ``or the 
     Director of National Intelligence'' and inserting ``the 
     Director of National Intelligence, or the Director of the 
     Central Intelligence Agency''.

     SEC. 105. ISSUANCE OF AN ORDER.

       Section 105 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1805) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively;
       (2) in subsection (b), by striking ``(a)(3)'' and inserting 
     ``(a)(2)'';
       (3) in subsection (c)(1)--
       (A) in subparagraph (D), by adding ``and'' at the end;
       (B) in subparagraph (E), by striking ``; and'' and 
     inserting a period; and
       (C) by striking subparagraph (F);
       (4) by striking subsection (d);
       (5) by redesignating subsections (e) through (i) as 
     subsections (d) through (h), respectively;
       (6) by amending subsection (e), as redesignated by 
     paragraph (5) of this section, to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of electronic surveillance if the Attorney General--
       ``(A) reasonably determines that an emergency situation 
     exists with respect to the employment of electronic 
     surveillance to obtain foreign intelligence information 
     before an order authorizing such surveillance can with due 
     diligence be obtained;
       ``(B) reasonably determines that the factual basis for the 
     issuance of an order under this title to approve such 
     electronic surveillance exists;
       ``(C) informs, either personally or through a designee, a 
     judge having jurisdiction under section 103 at the time of 
     such authorization that the decision has been made to employ 
     emergency electronic surveillance; and
       ``(D) makes an application in accordance with this title to 
     a judge having jurisdiction under section 103 as soon as 
     practicable, but not later than 7 days after the Attorney 
     General authorizes such surveillance.
       ``(2) If the Attorney General authorizes the emergency 
     employment of electronic surveillance under paragraph (1), 
     the Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     electronic surveillance, the surveillance shall terminate 
     when the information sought is obtained, when the application 
     for the order is denied, or after the expiration of 7 days 
     from the time of authorization by the Attorney General, 
     whichever is earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5) In the event that such application for approval is 
     denied, or in any other case

[[Page 4389]]

     where the electronic surveillance is terminated and no order 
     is issued approving the surveillance, no information obtained 
     or evidence derived from such surveillance shall be received 
     in evidence or otherwise disclosed in any trial, hearing, or 
     other proceeding in or before any court, grand jury, 
     department, office, agency, regulatory body, legislative 
     committee, or other authority of the United States, a State, 
     or political subdivision thereof, and no information 
     concerning any United States person acquired from such 
     surveillance shall subsequently be used or disclosed in any 
     other manner by Federal officers or employees without the 
     consent of such person, except with the approval of the 
     Attorney General if the information indicates a threat of 
     death or serious bodily harm to any person.
       ``(6) The Attorney General shall assess compliance with the 
     requirements of paragraph (5).''; and
       (7) by adding at the end the following:
       ``(i) In any case in which the Government makes an 
     application to a judge under this title to conduct electronic 
     surveillance involving communications and the judge grants 
     such application, upon the request of the applicant, the 
     judge shall also authorize the installation and use of pen 
     registers and trap and trace devices, and direct the 
     disclosure of the information set forth in section 
     402(d)(2).''.

     SEC. 106. USE OF INFORMATION.

       Subsection (i) of section 106 of the Foreign Intelligence 
     Surveillance Act of 1978 (8 U.S.C. 1806) is amended by 
     striking ``radio communication'' and inserting 
     ``communication''.

     SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.

       (a) Applications.--Section 303 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (2);
       (B) by redesignating paragraphs (3) through (9) as 
     paragraphs (2) through (8), respectively;
       (C) in paragraph (2), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed''; and
       (D) in paragraph (3)(C), as redesignated by subparagraph 
     (B) of this paragraph, by inserting ``or is about to be'' 
     before ``owned''; and
       (2) in subsection (d)(1)(A), by striking ``or the Director 
     of National Intelligence'' and inserting ``the Director of 
     National Intelligence, or the Director of the Central 
     Intelligence Agency''.
       (b) Orders.--Section 304 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively; and
       (2) by amending subsection (e) to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of a physical search if the Attorney General--
       ``(A) reasonably determines that an emergency situation 
     exists with respect to the employment of a physical search to 
     obtain foreign intelligence information before an order 
     authorizing such physical search can with due diligence be 
     obtained;
       ``(B) reasonably determines that the factual basis for 
     issuance of an order under this title to approve such 
     physical search exists;
       ``(C) informs, either personally or through a designee, a 
     judge of the Foreign Intelligence Surveillance Court at the 
     time of such authorization that the decision has been made to 
     employ an emergency physical search; and
       ``(D) makes an application in accordance with this title to 
     a judge of the Foreign Intelligence Surveillance Court as 
     soon as practicable, but not more than 7 days after the 
     Attorney General authorizes such physical search.
       ``(2) If the Attorney General authorizes the emergency 
     employment of a physical search under paragraph (1), the 
     Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     physical search, the physical search shall terminate when the 
     information sought is obtained, when the application for the 
     order is denied, or after the expiration of 7 days from the 
     time of authorization by the Attorney General, whichever is 
     earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5)(A) In the event that such application for approval is 
     denied, or in any other case where the physical search is 
     terminated and no order is issued approving the physical 
     search, no information obtained or evidence derived from such 
     physical search shall be received in evidence or otherwise 
     disclosed in any trial, hearing, or other proceeding in or 
     before any court, grand jury, department, office, agency, 
     regulatory body, legislative committee, or other authority of 
     the United States, a State, or political subdivision thereof, 
     and no information concerning any United States person 
     acquired from such physical search shall subsequently be used 
     or disclosed in any other manner by Federal officers or 
     employees without the consent of such person, except with the 
     approval of the Attorney General if the information indicates 
     a threat of death or serious bodily harm to any person.
       ``(B) The Attorney General shall assess compliance with the 
     requirements of subparagraph (A).''.
       (c) Conforming Amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is 
     amended--
       (1) in section 304(a)(4), as redesignated by subsection (b) 
     of this section, by striking ``303(a)(7)(E)'' and inserting 
     ``303(a)(6)(E)''; and
       (2) in section 305(k)(2), by striking ``303(a)(7)'' and 
     inserting ``303(a)(6)''.

     SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND 
                   TRACE DEVICES.

       Section 403 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1843) is amended--
       (1) in subsection (a)(2), by striking ``48 hours'' and 
     inserting ``7 days''; and
       (2) in subsection (c)(1)(C), by striking ``48 hours'' and 
     inserting ``7 days''.

     SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.

       (a) Designation of Judges.--Subsection (a) of section 103 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1803) is amended by inserting ``at least'' before 
     ``seven of the United States judicial circuits''.
       (b) En Banc Authority.--
       (1) In general.--Subsection (a) of section 103 of the 
     Foreign Intelligence Surveillance Act of 1978, as amended by 
     subsection (a) of this section, is further amended--
       (A) by inserting ``(1)'' after ``(a)''; and
       (B) by adding at the end the following new paragraph:
       ``(2)(A) The court established under this subsection, on 
     its own initiative or upon the request of the Government in 
     any proceeding or a party under section 501(f) or paragraph 
     (4) or (5) of section 703(h), may hold a hearing or 
     rehearing, en banc, when ordered by a majority of the judges 
     that constitute such court upon a determination that--
       ``(i) en banc consideration is necessary to secure or 
     maintain uniformity of the court's decisions; or
       ``(ii) the proceeding involves a question of exceptional 
     importance.
       ``(B) Any authority granted by this Act to a judge of the 
     court established under this subsection may be exercised by 
     the court en banc. When exercising such authority, the court 
     en banc shall comply with any requirements of this Act on the 
     exercise of such authority.
       ``(C) For purposes of this paragraph, the court en banc 
     shall consist of all judges who constitute the court 
     established under this subsection.''.
       (2) Conforming amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 is further amended--
       (A) in subsection (a) of section 103, as amended by this 
     subsection, by inserting ``(except when sitting en banc under 
     paragraph (2))'' after ``no judge designated under this 
     subsection''; and
       (B) in section 302(c) (50 U.S.C. 1822(c)), by inserting 
     ``(except when sitting en banc)'' after ``except that no 
     judge''.
       (c) Stay or Modification During an Appeal.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f)(1) A judge of the court established under subsection 
     (a), the court established under subsection (b) or a judge of 
     that court, or the Supreme Court of the United States or a 
     justice of that court, may, in accordance with the rules of 
     their respective courts, enter a stay of an order or an order 
     modifying an order of the court established under subsection 
     (a) or the court established under subsection (b) entered 
     under any title of this Act, while the court established 
     under subsection (a) conducts a rehearing, while an appeal is 
     pending to the court established under subsection (b), or 
     while a petition of certiorari is pending in the Supreme 
     Court of the United States, or during the pendency of any 
     review by that court.
       ``(2) The authority described in paragraph (1) shall apply 
     to an order entered under any provision of this Act.''.
       (d) Authority of Foreign Intelligence Surveillance Court.--
     Section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803), as amended by this Act, is further 
     amended by adding at the end the following:
       ``(i) Nothing in this Act shall be construed to reduce or 
     contravene the inherent authority of the court established by 
     subsection (a) to determine or enforce compliance with an 
     order or a rule of such court or with a procedure approved by 
     such court.''.

     SEC. 110. INSPECTOR GENERAL REVIEW OF PREVIOUS ACTIONS.

       (a) Definitions.--In this section:
       (1) Appropriate committees of congress.--The term 
     ``appropriate committees of Congress'' means--

[[Page 4390]]

       (A) the Select Committee on Intelligence and the Committee 
     on the Judiciary of the Senate; and
       (B) the Permanent Select Committee on Intelligence and the 
     Committee on the Judiciary of the House of Representatives.
       (2) Foreign intelligence surveillance court.--The term 
     ``Foreign Intelligence Surveillance Court'' means the court 
     established by section 103(a) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803(a)).
       (3) President's surveillance program and program.--The 
     terms ``President's Surveillance Program'' and ``Program'' 
     mean the intelligence activity involving communications that 
     was authorized by the President during the period beginning 
     on September 11, 2001, and ending on January 17, 2007, 
     including the program referred to by the President in a radio 
     address on December 17, 2005 (commonly known as the Terrorist 
     Surveillance Program).
       (b) Reviews.--
       (1) Requirement to conduct.--The Inspectors General of the 
     Department of Justice, the Office of the Director of National 
     Intelligence, the National Security Agency, and any other 
     element of the intelligence community that participated in 
     the President's Surveillance Program shall complete a 
     comprehensive review of, with respect to the oversight 
     authority and responsibility of each such Inspector General--
       (A) all of the facts necessary to describe the 
     establishment, implementation, product, and use of the 
     product of the Program;
       (B) the procedures and substance of, and access to, the 
     legal reviews of the Program;
       (C) communications with and participation of individuals 
     and entities in the private sector related to the Program;
       (D) interaction with the Foreign Intelligence Surveillance 
     Court and transition to court orders related to the Program; 
     and
       (E) any other matters identified by any such Inspector 
     General that would enable that Inspector General to complete 
     a review of the Program, with respect to such Department or 
     element.
       (2) Cooperation and coordination.--
       (A) Cooperation.--Each Inspector General required to 
     conduct a review under paragraph (1) shall--
       (i) work in conjunction, to the extent practicable, with 
     any other Inspector General required to conduct such a 
     review; and
       (ii) utilize, to the extent practicable, and not 
     unnecessarily duplicate or delay such reviews or audits that 
     have been completed or are being undertaken by any such 
     Inspector General or by any other office of the Executive 
     Branch related to the Program.
       (B) Coordination.--The Inspectors General shall designate 
     one of the Inspectors General required to conduct a review 
     under paragraph (1) that is appointed by the President, by 
     and with the advice and consent of the Senate, to coordinate 
     the conduct of the reviews and the preparation of the 
     reports.
       (c) Reports.--
       (1) Preliminary reports.--Not later than 60 days after the 
     date of the enactment of this Act, the Inspectors General of 
     the Department of Justice, the Office of the Director of 
     National Intelligence, the National Security Agency, and any 
     other Inspector General required to conduct a review under 
     subsection (b)(1) shall submit to the appropriate committees 
     of Congress an interim report that describes the planned 
     scope of such review.
       (2) Final report.--Not later than 1 year after the date of 
     the enactment of this Act, the Inspectors General of the 
     Department of Justice, the Office of the Director of National 
     Intelligence, the National Security Agency, and any other 
     Inspector General required to conduct a review under 
     subsection (b)(1) shall submit to the appropriate committees 
     of Congress and the Commission established under section 
     301(a) a comprehensive report on such reviews that includes 
     any recommendations of any such Inspectors General within the 
     oversight authority and responsibility of any such Inspector 
     General.
       (3) Form.--A report submitted under this subsection shall 
     be submitted in unclassified form, but may include a 
     classified annex. The unclassified report shall not disclose 
     the name or identity of any individual or entity of the 
     private sector that participated in the Program or with whom 
     there was communication about the Program, to the extent that 
     information is classified.
       (d) Resources.--
       (1) Expedited security clearance.--The Director of National 
     Intelligence shall ensure that the process for the 
     investigation and adjudication of an application by an 
     Inspector General or any appropriate staff of an Inspector 
     General for a security clearance necessary for the conduct of 
     the review under subsection (b)(1) is carried out as 
     expeditiously as possible.
       (2) Additional personnel for the inspectors general.--An 
     Inspector General required to conduct a review under 
     subsection (b)(1) and submit a report under subsection (c) is 
     authorized to hire such additional personnel as may be 
     necessary to carry out such review and prepare such report in 
     a prompt and timely manner. Personnel authorized to be hired 
     under this paragraph--
       (A) shall perform such duties relating to such a review as 
     the relevant Inspector General shall direct; and
       (B) are in addition to any other personnel authorized by 
     law.

     SEC. 111. WEAPONS OF MASS DESTRUCTION.

       (a) Definitions.--
       (1) Foreign power.--Subsection (a) of section 101 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(a)) is amended--
       (A) in paragraph (5), by striking ``persons; or'' and 
     inserting ``persons;'';
       (B) in paragraph (6), by striking the period and inserting 
     ``; or''; and
       (C) by adding at the end the following new paragraph:
       ``(7) an entity not substantially composed of United States 
     persons that is engaged in the international proliferation of 
     weapons of mass destruction.''.
       (2) Agent of a foreign power.--Subsection (b)(1) of such 
     section 101 is amended--
       (A) in subparagraph (B), by striking ``or'' at the end; and
       (B) by adding at the end the following new subparagraph:
       ``(D) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor; 
     or''.
       (3) Foreign intelligence information.--Subsection (e)(1)(B) 
     of such section 101 is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (4) Weapon of mass destruction.--Such section 101 is 
     amended by adding at the end the following new subsection:
       ``(p) `Weapon of mass destruction' means--
       ``(1) any explosive, incendiary, or poison gas device that 
     is intended or has the capability to cause a mass casualty 
     incident;
       ``(2) any weapon that is designed or intended to cause 
     death or serious bodily injury to a significant number of 
     persons through the release, dissemination, or impact of 
     toxic or poisonous chemicals or their precursors;
       ``(3) any weapon involving a biological agent, toxin, or 
     vector (as such terms are defined in section 178 of title 18, 
     United States Code) that is designed, intended, or has the 
     capability of causing death, illness, or serious bodily 
     injury to a significant number of persons; or
       ``(4) any weapon that is designed, intended, or has the 
     capability of releasing radiation or radioactivity causing 
     death, illness, or serious bodily injury to a significant 
     number of persons.''.
       (b) Use of Information.--
       (1) In general.--Section 106(k)(1)(B) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1806(k)(1)(B)) is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (2) Physical searches.--Section 305(k)(1)(B) of such Act 
     (50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage 
     or international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (c) Technical and Conforming Amendment.--Section 301(1) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1821(1)) is amended by inserting ``weapon of mass destruction 
     ,'' after ``person,''.

     SEC. 112. STATUTE OF LIMITATIONS.

       (a) In General.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended by 
     adding at the end the following new subsection:
       ``(e) Statute of Limitations.--No person shall be 
     prosecuted, tried, or punished for any offense under this 
     section unless the indictment is found or the information is 
     instituted not later than 10 years after the commission of 
     the offense.''.
       (b) Application.--The amendment made by subsection (a) 
     shall apply to any offense committed before the date of the 
     enactment of this Act if the statute of limitations 
     applicable to that offense has not run as of such date.

        TITLE II--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

     SEC. 201. STATUTORY DEFENSES.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is amended by adding after title VII the 
     following:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

     ``SEC. 801. DEFINITIONS.

       ``In this title:
       ``(1) Assistance.--The term `assistance' means the 
     provision of, or the provision of access to, information 
     (including communication contents, communications records, or 
     other information relating to a customer or communication), 
     facilities, or another form of assistance.
       ``(2) Attorney general.--The term `Attorney General' has 
     the meaning given that term in section 101(g).
       ``(3) Contents.--The term `contents' has the meaning given 
     that term in section 101(n).
       ``(4) Covered civil action.--The term `covered civil 
     action' means a suit in Federal or State court against any 
     person for providing assistance to an element of the 
     intelligence community.
       ``(5) Electronic communication service provider.--The term 
     `electronic communication service provider' means--

[[Page 4391]]

       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored;
       ``(E) a parent, subsidiary, affiliate, successor, or 
     assignee of an entity described in subparagraph (A), (B), 
     (C), or (D); or
       ``(F) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), (D), or (E).
       ``(6) Intelligence community.--The term `intelligence 
     community' has the meaning given that term in section 3(4) of 
     the National Security Act of 1947 (50 U.S.C. 401a(4)).
       ``(7) Person.--The term `person' means--
       ``(A) an electronic communication service provider; or
       ``(B) a landlord, custodian, or other person who may be 
     authorized or required to furnish assistance pursuant to--
       ``(i) an order of the court established under section 
     103(a) directing such assistance;
       ``(ii) a certification in writing under section 
     2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; 
     or
       ``(iii) a directive under section 102(a)(4), 105B(e), as 
     added by section 2 of the Protect America Act of 2007 (Public 
     Law 110-55), or 703(h).
       ``(8) State.--The term `State' means any State, political 
     subdivision of a State, the Commonwealth of Puerto Rico, the 
     District of Columbia, and any territory or possession of the 
     United States, and includes any officer, public utility 
     commission, or other body authorized to regulate an 
     electronic communication service provider.

     ``SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.

       ``(a) Intervention by Government.-- In any covered civil 
     action, the court shall permit the Government to intervene. 
     Whether or not the Government intervenes in the civil action, 
     the Attorney General may submit any information in any form 
     the Attorney General determines is appropriate and the court 
     shall consider all such submissions.
       ``(b) Factual and Legal Determinations.--In any covered 
     civil action, any party may submit to the court evidence, 
     briefs, arguments, or other information on any matter with 
     respect to which a privilege based on state secrets is 
     asserted. The court shall review any such submission in 
     accordance with the procedures set forth in section 106(f) 
     and may, based on the review, make any appropriate 
     determination of fact or law. The court may, on motion of the 
     Attorney General, take any additional actions the court deems 
     necessary to protect classified information. The court may, 
     to the extent practicable and consistent with national 
     security, request that any party present briefs and arguments 
     on any legal question the court determines is raised by such 
     a submission even if that party does not have full access to 
     the submission. The court shall consider whether the 
     employment of a special master or an expert witness, or both, 
     would facilitate proceedings under this section.
       ``(c) Location of Review.--The court may conduct the review 
     in a location and facility specified by the Attorney General 
     as necessary to ensure security.
       ``(d) Removal.--A covered civil action that is brought in a 
     State court shall be deemed to arise under the Constitution 
     and laws of the United States and shall be removable under 
     section 1441 of title 28, United States Code.
       ``(e) Special Rule for Certain Cases.--For any covered 
     civil action alleging that a person provided assistance to an 
     element of the intelligence community pursuant to a request 
     or directive during the period from September 11, 2001 
     through January 17, 2007, the Attorney General shall provide 
     to the court any request or directive related to the 
     allegations under the procedures set forth in subsection (b).
       ``(f) Applicability.--This section shall apply to a civil 
     action pending on or filed after the date of the enactment of 
     this Act.''.

     SEC. 202. TECHNICAL AMENDMENTS.

       The table of contents in the first section of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``Sec. 801. Definitions
``Sec. 802. Procedures for covered civil actions.''.

TITLE III--COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE ACTIVITIES

     SEC. 301. COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE 
                   ACTIVITIES.

       (a) Establishment of Commission.--There is established in 
     the legislative branch a commission to be known as the 
     ``Commission on Warrantless Electronic Surveillance 
     Activities'' (in this section referred to as the 
     ``Commission'').
       (b) Duties of Commission.--
       (1) In general.--The Commission shall--
       (A) ascertain, evaluate, and report upon the facts and 
     circumstances relating to electronic surveillance activities 
     conducted without a warrant between September 11, 2001 and 
     January 17, 2007;
       (B) evaluate the lawfulness of such activities;
       (C) examine all programs and activities relating to 
     intelligence collection inside the United States or regarding 
     United States persons that were in effect or operation on 
     September 11, 2001, and all such programs and activities 
     undertaken since that date, including the legal framework or 
     justification for those activities; and
       (D) report to the President and Congress the findings and 
     conclusions of the Commission and any recommendations the 
     Commission considers appropriate.
       (2) Protection of national security.--The Commission shall 
     carry out the duties of the Commission under this section in 
     a manner consistent with the need to protect national 
     security.
       (c) Composition of Commission.--
       (1) Members.--The Commission shall be composed of 9 
     members, of whom--
       (A) 5 members shall be appointed jointly by the majority 
     leader of the Senate and the Speaker of the House of 
     Representatives; and
       (B) 4 members shall be appointed jointly by the minority 
     leader of the Senate and the minority leader of the House of 
     Representatives.
       (2) Qualifications.--It is the sense of Congress that 
     individuals appointed to the Commission should be prominent 
     United States citizens with significant depth of experience 
     in national security, Constitutional law, and civil 
     liberties.
       (3) Chair; vice chair.--
       (A) Chair.--The Chair of the Commission shall be jointly 
     appointed by the majority leader of the Senate and the 
     Speaker of the House of Representatives from among the 
     members appointed under paragraph (1)(A).
       (B) Vice chair.--The Vice Chair of the Commission shall be 
     jointly appointed by the minority leader of the Senate and 
     the minority leader of the House of Representatives from 
     among the members appointed under paragraph (1)(B).
       (4) Deadline for appointment.--All members of the 
     Commission shall be appointed not later than 90 days after 
     the date of the enactment of this Act.
       (5) Initial meeting.--The Commission shall hold its first 
     meeting and begin operations not later than 45 days after the 
     date on which a majority of its members have been appointed.
       (6) Subsequent meetings.--After its initial meeting, the 
     Commission shall meet upon the call of the Chair.
       (7) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number may hold 
     hearings.
       (8) Vacancies.--Any vacancy in the Commission shall not 
     affect its powers and shall be filled in the same manner in 
     which the original appointment was made.
       (d) Powers of Commission.--
       (1) Hearings and evidence.--The Commission or, on the 
     authority of the Chair, any subcommittee or member thereof 
     may, for the purpose of carrying out this section, hold such 
     hearings and sit and act at such times and places, take such 
     testimony, receive such evidence, and administer such oaths 
     as the Commission, such designated subcommittee, or 
     designated member may determine advisable.
       (2) Subpoenas.--
       (A) Issuance.--
       (i) In general.--The Commission may issue subpoenas 
     requiring the attendance and testimony of witnesses and the 
     production of any evidence relating to any matter that the 
     Commission is empowered to investigate under this section. 
     The attendance of witnesses and the production of evidence 
     may be required from any place within the United States at 
     any designated place of hearing within the United States.
       (ii) Signature.--Subpoenas issued under this paragraph may 
     be issued under the signature of the Chair of the Commission, 
     the chair of any subcommittee created by a majority of the 
     Commission, or any member designated by a majority of the 
     Commission and may be served by any person designated by such 
     Chair, subcommittee chair, or member.
       (B) Enforcement.--
       (i) In general.--If a person refuses to obey a subpoena 
     issued under subparagraph (A), the Commission may apply to a 
     United States district court for an order requiring that 
     person to appear before the Commission to give testimony, 
     produce evidence, or both, relating to the matter under 
     investigation. The application may be made within the 
     judicial district where the hearing is conducted or where 
     that person is found, resides, or transacts business. Any 
     failure to obey the order of the court may be punished by the 
     court as civil contempt.
       (ii) Jurisdiction.--In the case of contumacy or failure to 
     obey a subpoena issued under subparagraph (A), the United 
     States district court for the judicial district in which the 
     subpoenaed person resides, is

[[Page 4392]]

     served, or may be found, or where the subpoena is returnable, 
     may issue an order requiring such person to appear at any 
     designated place to testify or to produce documentary or 
     other evidence. Any failure to obey the order of the court 
     may be punished by the court as a contempt of that court.
       (iii) Additional enforcement.--In the case of the failure 
     of a witness to comply with any subpoena or to testify when 
     summoned under authority of this paragraph, the Commission, 
     by majority vote, may certify a statement of fact attesting 
     to such failure to the appropriate United States attorney, 
     who shall bring the matter before the grand jury for its 
     action, under the same statutory authority and procedures as 
     if the United States attorney had received a certification 
     under sections 102 through 104 of the Revised Statutes of the 
     United States (2 U.S.C. 192 through 194).
       (3) Contracting.--The Commission may, to such extent and in 
     such amounts as are provided in appropriations Acts, enter 
     into contracts to enable the Commission to discharge its 
     duties under this section.
       (4) Information from federal agencies.--
       (A) In general.--The Commission is authorized to secure 
     directly from any executive department, bureau, agency, 
     board, commission, office, independent establishment, or 
     instrumentality of the Government documents, information, 
     suggestions, estimates, and statistics for the purposes of 
     this section. Each department, bureau, agency, board, 
     commission, office, independent establishment, or 
     instrumentality shall furnish such documents, information, 
     suggestions, estimates, and statistics directly to the 
     Commission upon request made by the Chair, the chair of any 
     subcommittee created by a majority of the Commission, or any 
     member designated by a majority of the Commission.
       (B) Receipt, handling, storage, and dissemination.--
     Information shall only be received, handled, stored, and 
     disseminated by members of the Commission and its staff in a 
     manner consistent with all applicable statutes, regulations, 
     and Executive orders.
       (5) Assistance from federal agencies.--
       (A) General services administration.--The Administrator of 
     General Services shall provide to the Commission on a 
     reimbursable basis administrative support and other services 
     for the performance of the Commission's functions.
       (B) Other departments and agencies.--In addition to the 
     assistance prescribed in subparagraph (A), departments and 
     agencies of the United States may provide to the Commission 
     such services, funds, facilities, staff, and other support 
     services as they may determine advisable and as may be 
     authorized by law.
       (6) Gifts.--The Commission may accept, use, and dispose of 
     gifts or donations of services or property.
       (7) Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as departments and agencies of the United States.
       (e) Staff of Commission.--
       (1) In general.--
       (A) Appointment and compensation.--The Chair, in 
     consultation with Vice Chair and in accordance with rules 
     agreed upon by the Commission, may appoint and fix the 
     compensation of an executive director and such other 
     personnel as may be necessary to enable the Commission to 
     carry out its functions, without regard to the provisions of 
     title 5, United States Code, governing appointments in the 
     competitive service, and without regard to the provisions of 
     chapter 51 and subchapter III of chapter 53 of such title 
     relating to classification and General Schedule pay rates, 
     except that no rate of pay fixed under this paragraph may 
     exceed the equivalent of that payable for a position at level 
     V of the Executive Schedule under section 5316 of title 5, 
     United States Code.
       (B) Personnel as federal employees.--
       (i) In general.--The executive director and any personnel 
     of the Commission who are employees shall be employees under 
     section 2105 of title 5, United States Code, for purposes of 
     chapters 63, 81, 83, 84, 85, 87, 89, 89A, 89B, and 90 of that 
     title.
       (ii) Members of commission.--Clause (i) shall not be 
     construed to apply to members of the Commission.
       (2) Detailees.--A Federal Government employee may be 
     detailed to the Commission without reimbursement from the 
     Commission, and such detailee shall retain the rights, 
     status, and privileges of his or her regular employment 
     without interruption.
       (3) Consultant services.--The Commission is authorized to 
     procure the services of experts and consultants in accordance 
     with section 3109 of title 5, United States Code, at rates 
     not to exceed the daily rate paid a person occupying a 
     position at level IV of the Executive Schedule under section 
     5315 of title 5, United States Code.
       (f) Security Clearances for Commission Members and Staff.--
       (1) Expeditious provision of clearances.--The appropriate 
     Federal agencies or departments shall cooperate with the 
     Commission in expeditiously providing to the Commission 
     members and staff appropriate security clearances to the 
     extent possible pursuant to existing procedures and 
     requirements, except that no person shall be provided with 
     access to classified information under this section without 
     the appropriate security clearances.
       (2) Access to classified information.--All members of the 
     Commission and commission staff, as authorized by the Chair 
     or the designee of the Chair, who have obtained appropriate 
     security clearances, shall have access to classified 
     information related to the surveillance activities within the 
     scope of the examination of the Commission and any other 
     related classified information that the members of the 
     Commission determine relevant to carrying out the duties of 
     the Commission under this section.
       (3) Facilities and resources.--The Director of National 
     Intelligence shall provide the Commission with appropriate 
     space and technical facilities approved by the Commission.
       (g) Compensation and Travel Expenses.--
       (1) Compensation.--Each member of the Commission may be 
     compensated at a rate not to exceed the daily equivalent of 
     the annual rate of basic pay in effect for a position at 
     level IV of the Executive Schedule under section 5315 of 
     title 5, United States Code, for each day during which that 
     member is engaged in the actual performance of the duties of 
     the Commission.
       (2) Travel expenses.--While away from their homes or 
     regular places of business in the performance of services for 
     the Commission, members of the Commission shall be allowed 
     travel expenses, including per diem in lieu of subsistence, 
     in the same manner as persons employed intermittently in the 
     Government service are allowed expenses under section 5703(b) 
     of title 5, United States Code.
       (h) Nonapplicability of Federal Advisory Committee Act.--
       (1) In general.--The Federal Advisory Committee Act (5 
     U.S.C. App.) shall not apply to the Commission.
       (2) Public meetings.--The Commission shall hold public 
     hearings and meetings to the extent appropriate.
       (3) Public hearings.--Any public hearings of the Commission 
     shall be conducted in a manner consistent with the protection 
     of information provided to or developed for or by the 
     Commission as required by any applicable statute, regulation, 
     or Executive order.
       (i) Reports and Recommendations of Commission.--
       (1) Interim reports.--The Commission may submit to the 
     President and Congress interim reports containing such 
     findings, conclusions, and recommendations for corrective 
     measures as have been agreed to by a majority of Commission 
     members.
       (2) Final report.--Not later than one year after the date 
     of its first meeting, the Commission, in consultation with 
     appropriate representatives of the intelligence community, 
     shall submit to the President and Congress a final report 
     containing such information, analysis, findings, conclusions, 
     and recommendations as have been agreed to by a majority of 
     Commission members.
       (3) Form.--The reports submitted under paragraphs (1) and 
     (2) shall be submitted in unclassified form, but may include 
     a classified annex.
       (4) Recommendations for declassification.--The Commission 
     may make recommendations to the appropriate department or 
     agency of the Federal Government regarding the 
     declassification of documents or portions of documents.
       (j) Termination.--
       (1) In general.--The Commission, and all the authorities of 
     this section, shall terminate 60 days after the date on which 
     the final report is submitted under subsection (i)(2).
       (2) Administrative activities before termination.--The 
     Commission may use the 60-day period referred to in paragraph 
     (1) for the purpose of concluding its activities, including 
     providing testimony to committees of Congress concerning its 
     report and disseminating the final report.
       (k) Definitions.--In this section:
       (1) Intelligence community.--The term ``intelligence 
     community'' has the meaning given the term in section 3(4) of 
     the National Security Act of 1947 (50 U.S.C. 401a(4)).
       (2) United states person.--The term ``United States 
     person'' has the meaning given the term in section 101(i) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(i)).
       (l) Funding.--
       (1) In general.--There are authorized to be appropriated 
     such sums as may be necessary to carry out the activities of 
     the Commission under this section.
       (2) Duration of availability.--Amounts made available to 
     the Commission under paragraph (1) shall remain available 
     until the termination of the Commission.

                       TITLE IV--OTHER PROVISIONS

     SEC. 401. SEVERABILITY.

       If any provision of this Act, any amendment made by this 
     Act, or the application thereof to any person or 
     circumstances is held invalid, the validity of the remainder 
     of the Act, any such amendments, and of the application of 
     such provisions to other persons and circumstances shall not 
     be affected thereby.

     SEC. 402. EFFECTIVE DATE.

       Except as provided in section 404, the amendments made by 
     this Act shall take effect on the date of the enactment of 
     this Act.

[[Page 4393]]



     SEC. 403. REPEALS.

       (a) Repeal of Protect America Act of 2007 Provisions.--
       (1) Amendments to fisa.--
       (A) In general.--Except as provided in section 404, 
     sections 105A, 105B, and 105C of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) 
     are repealed.
       (B) Technical and conforming amendments.--
       (i) Table of contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 nt) is amended by striking the items relating 
     to sections 105A, 105B, and 105C.
       (ii) Conforming amendments.--Except as provided in section 
     404, section 103(e) of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1803(e)) is amended--

       (I) in paragraph (1), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 702(h)(4)''; and
       (II) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 702(h)(4)''.

       (2) Reporting requirements.--Except as provided in section 
     404, section 4 of the Protect America Act of 2007 (Public Law 
     110-55; 121 Stat. 555) is repealed.
       (3) Transition procedures.--Except as provided in section 
     404, subsection (b) of section 6 of the Protect America Act 
     of 2007 (Public Law 110-55; 121 Stat. 556) is repealed.
       (b) FISA Amendments Act of 2008.--
       (1) In general.--Except as provided in section 404, 
     effective December 31, 2009, title VII of the Foreign 
     Intelligence Surveillance Act of 1978, as amended by section 
     101(a), is repealed.
       (2) Technical and conforming amendments.--Effective 
     December 31, 2009--
       (A) the table of contents in the first section of such Act 
     (50 U.S.C. 1801 nt) is amended by striking the items related 
     to title VII;
       (B) except as provided in section 404, section 601(a)(1) of 
     such Act (50 U.S.C. 1871(a)(1)) is amended to read as such 
     section read on the day before the date of the enactment of 
     this Act; and
       (C) except as provided in section 404, section 
     2511(2)(a)(ii)(A) of title 18, United States Code, is amended 
     by striking ``or a court order pursuant to section 704 of the 
     Foreign Intelligence Surveillance Act of 1978''.

     SEC. 404. TRANSITION PROCEDURES.

       (a) Transition Procedures for Protect America Act of 2007 
     Provisions.--
       (1) Continued effect of orders, authorizations, 
     directives.--Notwithstanding any other provision of law, any 
     order, authorization, or directive issued or made pursuant to 
     section 105B of the Foreign Intelligence Surveillance Act of 
     1978, as added by section 2 of the Protect America Act of 
     2007 (Public Law 110-55; 121 Stat. 552), shall continue in 
     effect until the expiration of such order, authorization, or 
     directive.
       (2) Applicability of protect america act of 2007 to 
     continued orders, authorizations, directives.--
     Notwithstanding any other provision of this Act or of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.)--
       (A) subject to paragraph (3), section 105A of such Act, as 
     added by section 2 of the Protect America Act of 2007 (Public 
     Law 110-55; 121 Stat. 552), shall continue to apply to any 
     acquisition conducted pursuant to an order, authorization, or 
     directive referred to in paragraph (1); and
       (B) sections 105B and 105C of such Act (as so added) shall 
     continue to apply with respect to an order, authorization, or 
     directive referred to in paragraph (1) until the expiration 
     of such order, authorization, or directive.
       (3) Use of information.--Information acquired from an 
     acquisition conducted pursuant to an order, authorization, or 
     directive referred to in paragraph (1) shall be deemed to be 
     information acquired from an electronic surveillance pursuant 
     to title I of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of 
     such Act (50 U.S.C. 1806).
       (4) Protection from liability.--Subsection (l) of section 
     105B of the Foreign Intelligence Surveillance Act of 1978, as 
     added by section 2 of the Protect America Act of 2007, shall 
     continue to apply with respect to any directives issued 
     pursuant to such section 105B.
       (5) Jurisdiction of foreign intelligence surveillance 
     court.--Notwithstanding any other provision of this Act or of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801 et seq.), section 103(e), as amended by section 5(a) of 
     the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 
     556), shall continue to apply with respect to a directive 
     issued pursuant to section 105B of the Foreign Intelligence 
     Surveillance Act of 1978, as added by section 2 of the 
     Protect America Act of 2007, until the expiration of all 
     orders, authorizations, and directives issued or made 
     pursuant to such section.
       (6) Reporting requirements.--
       (A) Continued applicability.--Notwithstanding any other 
     provision of this Act, the Protect America Act of 2007 
     (Public Law 110-55), or the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1801 et seq.), section 4 of the 
     Protect America Act of 2007 shall continue to apply until the 
     date that the certification described in subparagraph (B) is 
     submitted.
       (B) Certification.--The certification described in this 
     subparagraph is a certification--
       (i) made by the Attorney General;
       (ii) submitted as part of a semi-annual report required by 
     section 4 of the Protect America Act of 2007;
       (iii) that states that there will be no further 
     acquisitions carried out under section 105B of the Foreign 
     Intelligence Surveillance Act of 1978, as added by section 2 
     of the Protect America Act of 2007, after the date of such 
     certification; and
       (iv) that states that the information required to be 
     included under such section 4 relating to any acquisition 
     conducted under such section 105B has been included in a 
     semi-annual report required by such section 4.
       (7) Effective date.--Paragraphs (1) through (6) shall take 
     effect as if enacted on August 5, 2007.
       (b) Transition Procedures for FISA Amendments Act of 2008 
     Provisions.--
       (1) Orders in effect on december 31, 2009.--Notwithstanding 
     any other provision of this Act or of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), any order, authorization, or directive issued or made 
     under title VII of the Foreign Intelligence Surveillance Act 
     of 1978, as amended by section 101(a), shall continue in 
     effect until the date of the expiration of such order, 
     authorization, or directive.
       (2) Applicability of title vii of fisa to continued orders, 
     authorizations, directives.--Notwithstanding any other 
     provision of this Act or of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with 
     respect to any order, authorization, or directive referred to 
     in paragraph (1), title VII of such Act, as amended by 
     section 101(a), shall continue to apply until the expiration 
     of such order, authorization, or directive.
       (3) Challenge of directives; protection from liability; use 
     of information.--Notwithstanding any other provision of this 
     Act or of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.)--
       (A) section 103(e) of such Act, as amended by section 113, 
     shall continue to apply with respect to any directive issued 
     pursuant to section 702(h) of such Act, as added by section 
     101(a);
       (B) section 702(h)(3) of such Act (as so added) shall 
     continue to apply with respect to any directive issued 
     pursuant to section 702(h) of such Act (as so added);
       (C) section 703(e) of such Act (as so added) shall continue 
     to apply with respect to an order or request for emergency 
     assistance under that section;
       (D) section 706 of such Act (as so added) shall continue to 
     apply to an acquisition conducted under section 702 or 703 of 
     such Act (as so added); and
       (E) section 2511(2)(a)(ii)(A) of title 18, United States 
     Code, as amended by section 101(c)(1), shall continue to 
     apply to an order issued pursuant to section 704 of the 
     Foreign Intelligence Surveillance Act of 1978, as added by 
     section 101(a).
       (4) Reporting requirements.--
       (A) Continued applicability.--Notwithstanding any other 
     provision of this Act or of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 
     601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 
     101(c)(2), and sections 702(l) and 707 of such Act, as added 
     by section 101(a), shall continue to apply until the date 
     that the certification described in subparagraph (B) is 
     submitted.
       (B) Certification.--The certification described in this 
     subparagraph is a certification--
       (i) made by the Attorney General;
       (ii) submitted to the Select Committee on Intelligence of 
     the Senate, the Permanent Select Committee on Intelligence of 
     the House of Representatives, and the Committees on the 
     Judiciary of the Senate and the House of Representatives;
       (iii) that states that there will be no further 
     acquisitions carried out under title VII of the Foreign 
     Intelligence Surveillance Act of 1978, as amended by section 
     101(a), after the date of such certification; and
       (iv) that states that the information required to be 
     included in a review, assessment, or report under section 601 
     of such Act, as amended by section 101(c), or section 702(l) 
     or 707 of such Act, as added by section 101(a), relating to 
     any acquisition conducted under title VII of such Act, as 
     amended by section 101(a), has been included in a review, 
     assessment, or report under such section 601, 702(l), or 707.
       (5) Transition procedures concerning the targeting of 
     united states persons overseas.--Any authorization in effect 
     on the date of enactment of this Act under section 2.5 of 
     Executive Order 12333 to intentionally target a United States 
     person reasonably believed to be located outside the United 
     States shall continue in effect, and shall constitute a 
     sufficient basis for conducting such an acquisition targeting 
     a United States person located outside the United States 
     until the earlier of--
       (A) the date that such authorization expires; or
       (B) the date that is 90 days after the date of the 
     enactment of this Act.

[[Page 4394]]



     SEC. 405. NO RIGHTS UNDER THE FISA AMENDMENTS ACT OF 2008 FOR 
                   UNDOCUMENTED ALIENS.

       This Act and the amendments made by this Act shall not be 
     construed to prohibit surveillance of, or grant any rights 
     to, an alien not permitted to be in or remain in the United 
     States.

     SEC. 406. SURVEILLANCE TO PROTECT THE UNITED STATES.

       This Act and the amendments made by this Act shall not be 
     construed to prohibit the intelligence community (as defined 
     in section 3(4) of the National Security Act of 1947 (50 
     U.S.C. 401a(4))) from conducting lawful surveillance that is 
     necessary to--
       (1) prevent Osama Bin Laden, al Qaeda, or any other 
     terrorist or terrorist organization from attacking the United 
     States, any United States person, or any ally of the United 
     States;
       (2) ensure the safety and security of members of the United 
     States Armed Forces or any other officer or employee of the 
     Federal Government involved in protecting the national 
     security of the United States; or
       (3) protect the United States, any United States person, or 
     any ally of the United States from threats posed by weapons 
     of mass destruction or other threats to national security.

  The SPEAKER pro tempore. Pursuant to House Resolution 1041, the 
motion shall be debatable for 1 hour, with 40 minutes equally divided 
and controlled by the chairman and ranking minority member of the 
Committee on the Judiciary and 20 minutes equally divided and 
controlled by the chairman and ranking minority member of the Permanent 
Select Committee on Intelligence.
  The gentleman from Michigan (Mr. Conyers) and the gentleman from 
Texas (Mr. Smith) each will control 20 minutes, and the gentleman from 
Texas (Mr. Reyes) and the gentleman from Michigan (Mr. Hoekstra) each 
will control 10 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Ladies and gentlemen of the House, we finally come to the point in 
time where we consider the Foreign Intelligence Surveillance Act 
amendments, and I am delighted to bring this measure to the floor.
  I begin by observing that there are few rights that are more 
fundamental to our democracy than the right to have protections against 
unreasonable search and seizure, and there are few responsibilities 
that are more important than the government's protecting us from 
foreign threats. I submit that the measure before us does both of those 
and regards them as the two most important acts that we can pursue as 
responsible Members of the Congress. That conflict or tension goes to 
the very core of who we are as a Nation.
  Now, for more than 30 years, we have relied on the Foreign 
Intelligence Surveillance Act to strike the appropriate balance between 
the government's need to protect our rights from foreign attack and our 
citizens' right to be free from unreasonable searches and seizures and 
to have freedom of speech. The heart of that bargain was that the 
government could indeed use its awesome power of surveillance but only 
through independent court review. That's FISA since 1978.
  Now, a few years ago, the administration unilaterally chose to engage 
in warrantless surveillance of American citizens without court review. 
And last August, when this scheme appeared to be breaking down, this 
administration pushed through a law that it had caused to be drafted 
that essentially transferred the power of independent review from the 
courts to the Attorney General of the United States. Today, we will be 
voting on legislation to restore that proper balance.
  And so we present to you an uncomplicated consideration of a measure 
that has three titles. The first allows the government to obtain a 
single court order to approve surveillance against all members of any 
known terrorist group. It includes important safeguards to make sure 
that this power is not used to target innocent Americans.

                              {time}  1215

  The chairman of the Intelligence Committee has a lot more to say 
about that.
  The second title deals with the difficult issue of how we make sure 
that those telecom carriers who assisted the government in the 
aftermath of the September 11 tragedy are not placed in a position 
where they cannot defend themselves in court.
  And then, finally, the last title provides an accounting of the 
highly controversial warrantless surveillance program. The 
administration tells us they have nothing to hide and the program was 
lawful in their program or its implementation. If that is the case, 
they should have nothing to fear from this blue ribbon commission that 
will be created by the enactment of the provision before us.
  Now, we learned only yesterday that the Federal Bureau of 
Investigation was continuing to misuse the authorities that we granted 
it under the PATRIOT Act 6 years ago to unlawfully obtain information 
about law-abiding Americans. Just yesterday. We learned 4 days ago that 
the National Security Agency was using its massive power to create a 
nationwide database of American citizens. Four days ago.
  And so that's why I believe it important that we include the civil 
liberties safeguards set forth in the legislation today. We have been 
working very closely with the American Civil Liberties Union in that 
regard, and we have a half dozen other organizations that have fully 
endorsed the bill.
  The legislation before us gives the administration and the agencies 
every tool they need to protect our Nation against terrorism, while at 
the same time protecting our own citizens' civil rights and liberties. 
I urge that we carefully examine the proposition before us.
  And I will reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  This debate today is not about Republican or Democratic arguments. It 
is not about right or left ideology. It is simply about protecting our 
country, and it is about protecting American lives. This might be a 
good time to recall the story of the American soldiers who were killed 
in Iraq last May. When the U.S. military discovered that the soldiers 
had been kidnapped by terrorists, they launched a full scale search and 
rescue mission.
  In the early hours of the operation, U.S. intelligence officials on 
the ground discovered a lead that required immediate electronic 
surveillance of telephone conversations. But the terrorist loophole, 
which requires a court order from Washington before conducting 
surveillance on a foreign target, prevented our intelligence officials 
from gathering information from almost 10 hours.
  The body of one of the soldiers was later found in the Euphrates 
River. The terrorists claim to have executed the other two soldiers.
  We will never know if that information could have saved the lives of 
our soldiers. But we do know that the terrorist loophole tied our hands 
then and perhaps is costing us lives now.
  Prior to enactment of the Protect America Act, the Director of 
National Intelligence, Admiral McConnell, warned Congress that our 
intelligence community was missing two-thirds of all overseas terrorist 
communications. Three weeks ago, the Protect America Act expired, and 
our intelligence community lost the tools they need to monitor 
terrorists overseas and protect Americans here at home. We may never 
recover the foreign intelligence lost because of Congress's inaction.
  This intelligence might have given us information about terrorist 
plots or foreign espionage. I hope these missed opportunities will not 
lead to a terrorist attack in the United States or in other countries 
that could have been prevented.

[[Page 4395]]

  We are now 27 days late and much intelligence short because of the 
Democratic leadership's refusal to consider the bipartisan Senate bill. 
If they had brought it to the floor 3 weeks ago, it would have passed 
easily; and America would be safer today. But rather than modernize the 
Foreign Intelligence Surveillance Act, the Democrat majority's bill 
actually weakens it.
  First, the Democrats' bill requires a court order before the 
government can begin surveillance of a foreign terrorist overseas. FISA 
has never required a court order to target foreigners overseas. As we 
saw in May, this causes significant delays in gathering foreign 
intelligence, placing Americans at risk.
  Second, the Democrats' bill denies giving immunity to 
telecommunications providers who assisted the government following the 
terrorist attacks of September 11, 2001. The past and future 
cooperation of these companies is essential to our national security.
  Ninety-eight percent of America's communications technology is owned 
by private sector companies. We cannot conduct foreign surveillance 
without them. But if we continue to subject them to billion-dollar 
lawsuits, we risk losing their cooperation in the future. In fact, this 
bill is so flawed that the President has promised to veto it. Even 
more, Senator Reid, the Democratic majority leader, acknowledges that 
this legislation will never pass in the Senate.
  Congress can and must do better than this bill. Our liberties, our 
security, and the future of our Nation depend on it.
  I urge my colleagues to oppose this fatally flawed piece of 
legislation, and I ask the Democratic majority to bring the bipartisan 
Senate bill to the House floor for a vote.
  Mr. Speaker, I will reserve the balance of my time.
  Mr. REYES. Mr. Speaker, I yield myself such time as I may consume.
  I am proud to rise today in support of H.R. 3773, the FISA Amendments 
Act of 2008. This bill arms our intelligence community with powerful 
new tools to track and identify terrorist targets outside the United 
States. At the same time, it restores essential constitutional 
protections to Americans that were sharply eroded when the President 
signed the law known as the Protect America Act last August.
  We have put the security of Americans first and foremost, with close 
attention to their constitutional rights. We have also included 
provisions to allow companies that acted lawfully to make that argument 
to the courts. If they did nothing wrong, as they have said, then they 
will be immune from any lawsuit.
  Title I of this bill ensures that the government does not need to get 
an individualized warrant when it targets communications of targets 
overseas, the so-called foreign-to-foreign. This is the central problem 
that the administration cited with FISA in August, and we have fixed 
it.
  Let me be clear, Mr. Speaker, this bill does not require individual 
warrants for foreign targets before surveillance can begin. It does 
require the FISA Court to ensure that the procedures that the 
government uses to identify foreign targets are designed to protect the 
rights of Americans. This independent front-end review is necessary to 
ensure that the rights of Americans are being properly protected before 
any violations occur. However, we also provide a generous emergency 
provision, at least 30 days, so that the surveillance can begin in an 
emergency before the government has to go get approval from a court.
  In title II, we address the issue of the lawsuits filed against the 
telecom companies who allegedly participated in the President's 
warrantless surveillance program. This bill allows the courts to 
carefully safeguard classified information under well-established 
protocols. This information that the companies may wish to use to 
defend themselves now gives them that opportunity. This will also allow 
the companies to defend themselves in a secure effort. If they are 
innocent, they will face no damage. If they broke the law, they will be 
held to account. But this issue will be decided by a court, the 
American way.
  Title III of this bill establishes a bipartisan national commission 
to investigate warrantless tapping. I believe that the Nation is deeply 
concerned about what has gone on for the last 7 years. And I also want 
to restore some of the trust in the intelligence community. Title III 
is designed to do just that, by bringing these things into light in a 
careful and bipartisan manner. The American people deserve to know the 
truth about what has happened. This provision makes that happen.
  This is an important step forward, Mr. Speaker. So I urge my 
colleagues to vote ``yes.''
  I reserve the balance of my time.
  Mr. SMITH of Texas. Mr. Speaker, not enough attention is given to 
what the Director of National Intelligence and the Attorney General 
think about this piece of legislation; and in order to serve that 
purpose, I yield 2 minutes to the gentleman from Florida (Mr. Feeney), 
who is also a member of the Judiciary Committee.
  Mr. FEENEY. Mr. Speaker, there couldn't be a more critical discussion 
to have this morning before we cast this critical vote. The chairman of 
the Intelligence Committee, I must say, I respectfully disagree with in 
terms of the devastating consequences his proposal would have. The 
Attorney General of the United States and the Director of National 
Intelligence have looked at this proposal, and here is what they have 
said about the majority's proposal: ``Requiring prior court approval to 
gather foreign intelligence from foreign targets located overseas: the 
reason Congress did not include such a requirement when it passed the 
original FISA statute and with good reason, these foreign targets have 
no right to any court review of such surveillance under our 
Constitution. We know from experience requiring prior court approval is 
a formula for delay. Thus, this framework would impede vital foreign 
intelligence collection and put the Nation at unnecessary and greater 
risk.''
  Ladies and gentlemen, assume that you are the head of a corporation 
or a business in America after America is attacked, thousands of lives 
and several cities attacked; assuming that there is imminent threats to 
dozens of other cities and millions of others; assuming the Attorney 
General or the President contacts you and say that you have access to 
information that will save millions of Americans. What would you do? I 
hope you would cooperate.
  That is what many companies did, and now they are subject, in San 
Francisco, to over 50 lawsuits for tens of billions of dollars. The 
question is whether we ought to protect patriotic companies that for 
several hundred years have had a privilege to cooperate with 
government. It's true that technically they may have immunity. But here 
is what you haven't acknowledged: the immunity is useless to them 
because they cannot assert it. It would be a violation of Federal law.
  Mr. Speaker, I will submit for the Record a letter from the general 
counsel of AT&T, the victim of one of these trial lawyer suits to the 
tune of tens of billions of dollars as he talks about the state secrets 
doctrine that prevents them from protecting themselves in a court of 
law, as he talks about the dilemma that they face in the future going 
forward if they want to help Americans defend themselves.
  Mr. CONYERS. Mr. Speaker, I would like to recognize Jim Marshall of 
Georgia, who has worked with us on this month in and month out, for 
1\1/2\ minutes.
  Mr. MARSHALL. I thank you, Mr. Chairman.
  Mr. Speaker, may I engage the chairman of the Judiciary Committee and 
the chairman of the Intelligence Committee for purposes of a colloquy.
  Mr. CONYERS. Of course.
  Mr. REYES. I would be happy to oblige my good friend from Georgia.
  Mr. MARSHALL. I would like to clarify some elements of the process to 
be established under title II of the bill we debate today. Title II of 
the bill would assist the telecommunications carriers in dealing with 
the civil lawsuits they currently face by permitting

[[Page 4396]]

them to use classified information in defense of claims against them.
  I want to be clear that any review of classified information would 
only take place in the judge's chambers without the plaintiffs or their 
representatives present. The bill requires the judge to follow the 
procedures in section 106(f) of FISA.
  Am I correct in my understanding that section 106(f) of FISA requires 
that the review of any classified information must take place in camera 
and ex parte and that such classified information must remain secret, 
that it is not to be disclosed to the plaintiffs, their representatives 
or any others except those authorized to receive such information by 
virtue of their security clearances?
  Mr. CONYERS. Mr. Marshall, I couldn't put it any more appropriately 
myself.
  Mr. REYES. That is correct.
  Mr. MARSHALL. I would also like to clarify what sort of trial would 
be involved in this process. Am I correct in my understanding that 
under the bill being debated, if this judicial process in any way 
involves classified information, the classified portion of the trial 
would be conducted by a judge without a jury; the judge would privately 
inspect, but not reveal, classified information relevant to the case; 
and that the process would be limited to the in camera ex parte 
procedures already outlined in FISA?
  Mr. REYES. That is correct.
  Mr. CONYERS. I agree, as well.

                              {time}  1230

  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Iowa (Mr. King), a member of the Judiciary Committee.
  Mr. KING of Iowa. I thank the ranking member for yielding.
  Mr. Speaker, you know, we are here not really talking about the issue 
of rights. I haven't found anyone yet who has had their rights trampled 
on, their rights to be free from unreasonable search and seizure, as 
the chairman announced from the beginning.
  As I look at what is going on here in policy, there is a situation 
going on right now in New York, in that area, where you have 
contractors that answered the call and the crisis of 9/11, and they are 
under lawsuits by the thousands, and I think we are in pretty much 
unanimous agreement that we should indemnify them for answering the 
call to protect America. I don't understand the difference between why 
we would not want to indemnify an information company that answered the 
call to protect America.
  To me, those are the closest two comparisons that we can get. If we 
protect contractors when they went to that smoking hole in that war 
zone, why won't we protect telecommunication companies when they 
stepped up on good faith and believed that they were legally operating 
under the law?
  Where is that first citizen that has had their privacy violated? I 
haven't found one yet. None have been brought forward. I sat in hours 
of classified briefings. No one even uttered the name of a person who 
had their rights violated.
  The chairman talked about restoring the proper balance. Well, here is 
the thing that sits behind this restoring the proper balance. This is 
from page 8 of the AT&T letter. ``The legal paradox has implications 
not just for the carrier defendants, but for the Nation's security in 
general. It suggests to private companies that even good-faith 
cooperation is apparently authorized, and lawful intelligence activity 
can expose them to serious legal and business risk. This creates 
incentives to resist cooperation.''
  That sets up a scenario where we are saying to companies, cooperate 
with us, but you might have to face, and will face, billions and 
billions of dollars of lawsuits, two score more of lawsuits, two dozen 
or more aggregated under a single court, Ninth Circuit, San Francisco, 
and they are watching their share values go down and watching their 
opportunities diminish around the world. And then we put them in the 
face of the paradox, what do you do if there is another attack on 
America?
  These scales of justice are now out of balance because the trial 
lawyers have put this thing out of balance, and the political pressure 
and the risk to the American people of the security of being attacked 
again are what is weighing on the other side. When the fear of attack 
gets greater and when the political benefit becomes that point, then we 
will offset the trial lawyers and we will get a bill.
  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from New 
York (Mr. Nadler), a coauthor of the bill before us today and the 
chairman of the Constitution Committee.
  Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, I rise in support of this carefully crafted legislation 
which gives our intelligence agencies all the tools they say they need 
to protect our country while protecting our fundamental civil 
liberties.
  In the last few weeks, we have heard countless assertions from our 
colleagues on the other side that are false and misleading. They claim 
that we allowed the Protect America Act to expire, when it was the 
Republicans who blocked attempts to extend that bill temporarily, and 
they continue to claim that retroactive immunity for the telecom 
companies is necessary for the security of the country.
  The telecom companies aided the administration's surveillance 
program. Some people, American citizens, believe their constitutional 
rights were violated and brought a lawsuit against the government and 
telecom companies.
  There are two narratives here. One is that these companies 
patriotically aided the administration to protect Americans from 
terrorists. The other is that they conspired with a lawless 
administration to violate the constitutional rights of Americans. Which 
of these narratives is right is for a court to decide. It is not the 
role of Congress to decide legal cases between private parties. That is 
why we have courts.
  We had told the telecom companies they would not be subject to 
lawsuits for doing their duty. But whether they were doing their duty 
or abusing the rights of Americans is precisely the issue.
  In any event, the existing law already provides absolute immunity if 
their help was requested and if they were given a statement by the 
Attorney General or various other government officials stating that the 
requested help did not require a warrant or court order and would not 
break the law. They have immunity. Whether those statements are true or 
not, they can rely absolutely on the government's assertions.
  So why do they think they need retroactive immunity? Because of the 
administration's sweeping assertion of the State secrets doctrine, will 
has prevented the companies from claiming their immunity.
  This bill allows the telecom companies in secret in court to present 
the evidence for their immunity and to get their immunity, if they 
obeyed the law. And I remind that obeying the law means simply 
obtaining a statement from the government that the company's help is 
needed and that the requested help does not require a court order or 
violated the law. A company that assisted in spying on its customers 
without getting that simple assurance from the government does not 
deserve immunity. And even if we voted retroactive immunity, they would 
still have to prove that immunity for what they do next week in the 
same way, and they would have the same problem.
  So, by solving the State secrets problem, we give the companies the 
immunity they need, if they need it, and if they obeyed the law. This 
still gives our intelligence agencies what they need. I urge its 
adoption.
  Mr. Speaker, I rise in strong support of H.R. 3733, the FISA 
Amendments Act. This carefully crafted legislation gives our 
intelligence agencies all the tools they say they need to protect our 
country, while protecting our fundamental civil liberties.
  Mr. Speaker, let us be clear about what this legislation does not do. 
It does not require individual warrants for the targeting of foreign 
terrorists located outside the United States. For three decades, that 
has been the law, and it will still be the law under this bill. There 
is no dispute about this.

[[Page 4397]]

  The bill starts with the recognition that the intelligence community 
needs to surveil all members of a terrorist group--once that group is 
identified. Any suggestion that it requires individualized warrants to 
intercept communications of terrorists overseas is wrong.
  The bill maintains the traditional requirement of a warrant when our 
intelligence agencies seek to conduct surveillance on Americans. And 
because some foreign surveillance may record conversations with 
Americans, the bill requires that, when the Government proposes to 
undertake surveillance of a foreign group or entity, it must first 
apply to the FISA court, except that, in an emergency, the surveillance 
can begin immediately, and the court can consider the surveillance 
procedures later.
  In both this bill and the Senate bill, the government must inform the 
court of the procedures it will use to ensure that it is targeting only 
foreigners overseas and how it will ``minimize'' domestic information 
it might inadvertently pick up. The only real difference is that the 
Senate bill lets them listen first, then go to the court within 5 days. 
This bill requires that they go to the FISA Court first. But in an 
emergency, we give them 7 days to listen before they go to the court. 
So will someone please tell me how this minor difference between the 
bills somehow gives rights to terrorist?
  There is one thing that this bill does not do, and this great body 
must not do--provide blanket, retroactive immunity to the 
telecommunication companies that assisted in the President's 
warrantless wiretapping program. Such a move would fly in the face of 
our notions of justice.
  Mr. Speaker, in the last few weeks, we have heard countless 
assertions from our colleagues on the other side that are false and 
misleading. They claim that we allowed the Protect America Act to 
expire--when it was the Republicans who blocked attempts to extend that 
legislation temporarily. And they continue to claim that retroactive 
immunity for the telecom companies is necessary for the security of the 
country. But they have failed to provide any evidence for that claim.
  The telecom companies aided the Administration's surveillance 
program. Some people--American citizens--believe their constitutional 
rights were violated, and brought suit against the government and the 
telecom companies. There are two narratives here. One is that the 
telecom companies patriotically aided the Administration in protecting 
Americans from terrorists. The other is that the telecom companies 
conspired with a lawless Administration to violate the Constitutional 
rights of Americans. Which of these narratives is correct is for a 
court to decide.
  It is not the role of Congress to decide legal cases between private 
parties. That is why we have courts. If the claims are not meritorious, 
the courts will throw them out. But if the claims do have merit, we 
have no right to dismiss them without even reviewing the evidence.
  We are told that the telecom companies should not be subject to 
lawsuits for doing their duty. But whether they were doing their duty, 
or abusing the rights of Americans, is precisely the issue. And that is 
a legal issue for the courts to decide.
  In any event, the existing law, in a wise balance of national 
security and constitutional rights that this bill does not change, 
already provides absolute immunity to the telecom companies if their 
help was requested, and if they were given a statement by the Attorney 
General, or by various other government officials, stating that the 
requested help did not require a warrant or court order and would not 
break the law. They have immunity whether those statements were true or 
not. They can rely absolutely on the government's assertions.
  So why do they think they need retroactive immunity? Because of the 
Administration's sweeping assertion of the ``state secrets'' doctrine, 
which has prevented the companies from claiming their immunity.
  Title II of this bill will allow the telecoms to show the courts, in 
a secure setting, if they were obeying the law or if they weren't. It 
will allow the telecom companies to assert their immunity in court, and 
to present the relevant documents and evidence to the court in a secret 
session that protects any ``state secrets.'' The courts can then judge 
whether the telecom company obeyed the law--in which case it has 
complete immunity--or whether it did not. And, I remind you, that 
``obeying the law'' means simply obtaining a statement from the 
government that the company's help is needed, and that the requested 
help does not require a court order or violate the law. A company that 
assisted in spying on its customers without getting that simple 
assurance does not deserve immunity.
  Mr. Speaker, this bill gives our intelligence agencies what they say 
they need. But it also demands that their extraordinary powers be used 
properly, and that they follow our laws and our Constitution. This bill 
will help limit this Administration's disregard for the rule of law. It 
is a carefully crafted measure, and deserves the support of every 
member in this body.
  Mr. SMITH of Texas. I yield 2 minutes to the gentleman from Indiana 
(Mr. Pence), a member of the Judiciary Committee and the Foreign 
Affairs Committee.
  Mr. PENCE. I thank the gentleman for yielding.
  Mr. Speaker, I rise in opposition to the FISA Amendments Act of 2008. 
America is at war. We have to do all we can to protect ourselves from 
those who seek to do us and our communities and our families harm. But 
for the past few weeks, we have unilaterally disarmed, because this 
House has failed to pass an acceptable long-term extension of the 
Foreign Intelligence Surveillance Act, and it will fail again today.
  The United States Senate passed a workable bipartisan compromise by a 
vote of 68-29 that extended FISA for nearly 6 years. The Senate bill 
provided necessary immunity to communication providers who aided the 
government after 9/11, and they are now facing numerous frivolous 
lawsuits as a result. It also closed a massive loophole in our foreign 
intelligence surveillance laws that prevents us from listening to 
terrorists in one foreign country who are talking to a terrorist in 
another foreign country; yet the Senate bill is not before us today.
  It is extraordinary that a bipartisan compromise and accomplishment 
in the United States Senate is not being considered before this House 
today.
  Last August, Republicans and Democrats on the Judiciary Committee 
came together in the Protect America Act and we forged a compromise, 
but it was only embraced in the short term. And, sadly, the Senate will 
not pass this bill, even if it passes the House today, and if it did, 
the President will veto it. So what we are involved in here is a futile 
attempt at compromise that will fail.
  Speaking less as a Congressman and more as a father and as an 
American who was here on September 11, I urge my colleagues to take a 
breath, to step back, to examine the spirit of compromise evidenced by 
our colleagues in the Senate, and find a way to give our foreign 
intelligence gathering the tools they need to protect our families.
  Mr. REYES. Mr. Speaker, I am proud to say that the 110th Congress is 
not a rubber stamp for anybody, the Senate or the administration.
  I now yield 2\1/2\ minutes to the distinguished gentleman from Iowa 
(Mr. Boswell), the vice chairman of the Intelligence Committee.
  Mr. BOSWELL. Mr. Speaker, I thank Chairman Reyes for the time and 
your dedicated leadership and hard work to effect oversight over our 
Nation's multiple intelligence gathering agencies.
  In the process of this debate regarding FISA, we have strived to make 
America safe and exercise and protect the Constitution and Americans' 
civil liberties. As I have heard Congressman Tierney say at different 
times, if we had followed FISA, we wouldn't be here today, and I 
appreciate that very, very much. Unfortunately, for whatever reason, 
and I don't know, none of us do, whatever reason, this President has 
repeatedly used executive orders and end-run the provisions, 
protections of FISA that work for the purposes intended.
  Several weeks ago, I became concerned that our private telecom 
companies might be falsely accused and have the effect of putting a 
chill on their response in the future. I felt a gut confidence that 
pressure from on high was put on, i.e., we have an emergency, and we, 
the government, must have your assistance or a terrible event would 
happen. I think back on my own training in my life, and I know 
something about those terrible events that could happen, because I put 
together weapons of mass destruction in my own training, so it kind of 
haunts you sometimes.
  So, yes, I, like others, like 20 others, signed a letter of concern. 
By the way, it was not a Blue Dog letter or a Blue Dog position. It was 
individuals, some of whom were Blue Dogs.

[[Page 4398]]

  Now, over the course of these past weeks, a credit to Chairman Reyes 
and Chairman Conyers and our super staff, an acceptable solution has 
been found that makes FISA, supports FISA, and gives protection to 
those who assist within the provisions of the law.
  For example, those who feel their civil rights have been violated can 
seek justice, and the telecoms who feel they have complied with the law 
can be defended. A judge would review the classified evidence and 
decide. This means to me that the Constitution and civil rights are 
protected, and the telecoms who are asked or pressured to assist in an 
emergency can know that classified evidence will be seen by the judge. 
Classified evidence would be seen by a judge and the providers' defense 
would be taken into account. I believe this to be a solution.
  So, in closing, I would say this will protect the Constitution and 
the American people's civil rights, plus I support the bill because it 
gives the intelligence community the tools it needs and gives the 
telecom companies the means to defend themselves from unfair lawsuits. 
The bill provides telecom companies a way to present their defense in 
district court without the administration using State secrets to block 
the defense. If a company is simply doing its patriotic duty and 
following the law, this bill ensures the company will not be punished.
  I urge everyone who signed the letter with me to support this 
resolution.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman 
from Ohio (Mr. Chabot), a member of both the Judiciary Committee and 
the Foreign Affairs Committee.
  Mr. CHABOT. I thank the gentleman for yielding.
  Mr. Speaker, we are on the floor today debating yet again another set 
of amendments to FISA, another set of amendments that limit the ability 
of law enforcement and intelligence communities to make this Nation 
safer, another set of amendments that have no chance of becoming law. 
What these amendments do confirm is that we are a litigious society, 
that some are willing to put lawsuits over safety.
  Prior to the passage of the Protect America Act, our intelligence 
community told us that they missed more than two-thirds of all overseas 
terrorist communications because of gaps and inconsistencies in the 
law. In August, we closed those holes, giving law enforcement and the 
intelligence communities the tools and resources they need to stay one 
step ahead.
  Disappointingly, 26 days have passed since those provisions expired. 
For 26 days now, our law enforcement and intelligence communities have 
had to revert back to the status quo. They have had to revert back to a 
status that allows terrorists to have the upper hand. And yet this 
Chamber continues to bring legislation that we know will not do the 
job, all the while, knowing that there is a solution, a bipartisan 
solution, to this predicament.
  The bipartisan solution lies in the legislation passed by the Senate 
30 days ago. These amendments continue and build on the authorizations 
provided by the Protect America Act, ensuring that surveillance 
continues on foreign targets outside the United States. Immunity is 
provided to our communication partners, FISA applications, and orders 
are processed in a more timely manner, and lengthening the periods of 
emergency authorization for electronic surveillance.
  Yet this bill is mindful of our Constitution and the protections it 
affords to U.S. citizens, whether they are inside or outside the United 
States. Moreover, the authority provided by the bill sunsets in 6 
years, allowing Congress to revisit if issues arise.
  I urge my colleagues to not make the safety of the American people a 
partisan issue.
  There are many things that we can disagree on, but the safety of this 
country should not be one of them. Let's not send the message that 
litigation is more important than patriotism, but that we are committed 
to standing as one in doing what is necessary and needed to keep this 
Nation safe.

                              {time}  1245

  Mr. CONYERS. Mr. Speaker, could I remind my two distinguished members 
of Judiciary, Mike Pence of Indianapolis and Steve Chabot of Ohio, that 
the reason we are not taking up the Senate provisions is that the House 
has a better idea, and we are coequal. They don't give us whatever they 
want.
  The Chair is pleased now to recognize Bobby Scott of Virginia, 
chairman of the Crime Committee, for 2 minutes.
  Mr. SCOTT of Virginia. I would like to thank the chairs of the 
Judiciary Committee and the Intelligence Committee for their hard work 
in addressing the issue of warrantless surveillance under the Foreign 
Intelligence Surveillance Act and for introducing legislation that 
addresses national security challenges presented by global terrorism.
  This bill provides that any wiretap which would be legal under the 
President's proposal will be legal under this legislation. It merely 
requires that under some circumstances that a warrant be obtained prior 
to the wiretap or if there is an emergency after the wiretap begins. 
The warrant procedure is a modest protection of our civil liberties.
  This bill does not balance civil liberties with national security, 
because all of the wiretaps would be permitted; but this bill just 
provides a little oversight. The idea of wiretaps without oversight has 
to be considered in the context of some recent documents of the 
Department of Justice.
  Republican-appointed officials have accused this administration of 
firing U.S. Attorneys because they did not indict Democrats in time to 
affect an upcoming election. We have been unable to ascertain the truth 
of the allegations for several reasons.
  First, high-ranging administration officials question the credibility 
of Attorney General Gonzales' original response to the allegations. One 
high-ranking Justice Department official quit; another pleaded the 
fifth. White House officials have refused to respond to our subpoenas. 
It is this Justice Department that seeks unprecedented authority to 
wiretap citizens without traditional oversight or even articulating the 
primary purpose of the wiretaps.
  Furthermore, the bill does not offer retroactive immunity for illegal 
activities. The fact is that the telecom companies which may benefit 
from retroactive immunity already have immunity for any reasonable 
actions they may have taken. This bill provides a procedural change 
which ensures that these claims of immunity can properly be considered.
  In summary, this bill provides for all of the security protections 
sought by the President, but it also provides modest protection for our 
civil liberties. Therefore, we should support the bill.
  Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to my colleague 
from Texas (Mr. Gohmert), who is not only on the Judiciary Committee 
but also the ranking member of the Crime, Terrorism and Homeland 
Security Subcommittee.
  Mr. GOHMERT. Mr. Speaker, we have just heard reference to the Senate 
bill; and my friend, for whom I have great respect, our chairman of 
Judiciary, Chairman Conyers, mentioned that we are coequal branches. I 
would submit to you, we are an even more important branch because we 
are more accountable to the people than the Senate is.
  The difference, though, in the Senate bill and this bill is, the 
Senate Democrats got input and allowed input into the bill from their 
Republican colleagues, and we are not allowed to make amendments on 
this bill. All we can do is come up and point out problems with it.
  My friend, Mr. Nadler, whom I have come to believe has a brilliant 
legal intellect, has come on the floor this morning and said that there 
is false information from our side, that we are falsely misleading. He 
said that we have been less than honest. That bothers me to no end, 
because he knows some of the talking points that are being talked on 
this floor are just not right.
  Now, I have read the bill. It's a better bill than the manager's 
amendment we dealt with last time; it is. But we are still not there, 
and we still haven't been allowed enough input to make it better.
  But we also heard from one of our colleagues across the aisle that 
said he

[[Page 4399]]

fought in Afghanistan, and he was a soldier. Thank God we have him and 
others that would do that. But the telecoms in the week, 2 weeks, 4 
weeks right after 9/11, when we did not know if we were going to have 
thousands of Americans lost any day, they were put in a terrible 
situation.
  You know the law. The law is very restricted on who in the telecom 
company can see the request or the demand from the administration, from 
the NSA or whoever makes it. You know that. I pushed to make sure in 
the law that they are at least allowed to talk to a lawyer, but they 
are restricted there.
  Put yourself in their place. They get a request in any hypothetical 
case after Americans are killed in an act of war on our soil.
  Mr. REYES. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman 
from California, Ms. Anna Eshoo, who chairs our Subcommittee on 
Intelligence Community Management.
  Ms. ESHOO. I thank the distinguished chairman of the House 
Intelligence Committee.
  Mr. Speaker, I rise in support of H.R. 3773. Today's debate really 
goes to the heart of the two highest responsibilities of Members of 
Congress, to preserve our Constitution and to secure our Nation.
  Front and center, that's what this bill does, it accomplishes both. 
It gives the intelligence community the most flexible tools for our 
professionals for their surveillance of terrorists and other necessary 
targets overseas. It accomplishes that. It safeguards our 
constitutional rights by requiring the FISA Court to approve targeting 
and minimization standards at the front end, when no emergency exists 
and to assure that Americans are not targeted.
  It protects the private sector by providing prospective liability 
protection for telecommunications companies that provide lawful 
assistance to the government, and it provides those companies a way to 
present their defenses in secure proceedings, in district court, 
without the administration using state secrets to block those defenses.
  These are the most critical tools and safeguards, and that's why 
Members of Congress can be assured that they will be taking all the 
right steps by supporting this bill.
  The bill is one that we should all support, and I am proud to support 
it.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my colleague 
from Texas (Mr. McCaul), who is a member of the Homeland Security 
Committee and the Foreign Affairs Committee.
  Mr. McCAUL of Texas. Mr. Speaker, we all took an oath in this Chamber 
to protect and defend the Constitution of the United States from all 
enemies, both foreign and domestic. That is what this debate here today 
is really all about.
  By allowing the Protect America Act to expire, we are extending 
constitutional protections to foreign terrorists. This bill does 
nothing to fix that problem.
  We need to pass this Senate bill that passed overwhelmingly on a 
bipartisan basis. I worked in the Justice Department on FISA warrants. 
The statute was never designed to apply to foreign terrorists in a 
foreign country, as recently stated by admiral Bobby Inman, the 
principal author of the FISA statute.
  I want to point out two articles that were in The New York Times 
today: ``Afghanistan: Taliban Destroy Cell Towers.'' ``Taliban 
Threatens Afghan Cellphone Companies.''
  This is what is happening. We need to protect America now by making 
the Protect America Act permanent. The Taliban in their own words, 
their own statements, says the surveillance program has ``caused heavy 
casualties to Taliban'' in great proportions.
  It is time to pass the Protect America Act.
  Mr. CONYERS. I wanted my friend Judge Gohmert to know that the reason 
we didn't get the bipartisanship that the other body did is that you 
guys boycotted our meetings. Your ranking member or leader could have 
sent anybody to our meetings, but you didn't come. So now you are 
complaining.
  Mr. Speaker, I am happy to recognize Debbie Wasserman Schultz, a 
valuable member of our Judiciary Committee, for 1 minute.
  Ms. WASSERMAN SCHULTZ. Mr. Speaker, I began my service in Congress 
fighting for the right to privacy. Above all else, Americans' ability 
to communicate without the fear of having the government tap their 
phones, listen to their conversations or intercept their private 
communication is a right that just cannot be discarded.
  Our good friends on the other side of the aisle have said if an 
American is not communicating with a terrorist, then they have nothing 
to fear. The manner in which the administration has conducted the 
warrantless surveillance program has undermined our citizens' 
confidence in the bedrock belief that we live in a free country where 
we do not live in constant fear of the government looking over our 
shoulder.
  This is a cherished right that has been arrogantly cast aside by an 
administration run amok. After a careful review of both classified and 
unclassified materials concerning the administration's warrantless 
wiretapping program, I, like so many of my Judiciary Committee 
colleagues, concluded that the immunity that is proposed by the 
administration is unnecessary and goes too far.
  We must be vigilant when protecting our citizens' right to privacy. 
It is a rare, unique, and important right that we cannot allow to be 
subjected to death by a thousand cuts. If the administration has its 
way and this right falls, what is next? We must stand in the breach and 
make sure that Americans' right to privacy is preserved.
  I urge my colleagues to support this bill.
  Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentlewoman 
from Tennessee (Mrs. Blackburn), whom we wish were a member of the 
Judiciary Committee.
  Mrs. BLACKBURN. Mr. Speaker, the legislation before the House today 
is nothing short of an abdication of the liberal majority's 
responsibility to protect the American people. Yesterday's Investor's 
Business Daily editorial sums the bill up nicely, a ``FISA Fix for 
Lawyers.'' I could not say it better myself. After all, this bill is 
nothing short of an earmark for the trial bar, and it reveals the 
brazen partisan interest of this Democrat majority.
  Rather than accept the bipartisan legislation adopted in the Senate 
and endorsed by our Nation's security experts, the liberal elite of 
this House instead brings forward a $72,440,904 thank you note to the 
trial bar. Why $72,440,904? That's the amount the trial attorneys have 
contributed to Democrat candidates in the 2008 election cycle.
  But it might only be a down payment for the potential liability 
interest that they have if they get their way on their earmark bill. We 
have to say, at what cost? We have heard the story that I used in a 
Memphis story on February 28 of our three American soldiers who were 
kidnapped.
  Mr. CONYERS. Mr. Speaker, I am honored to recognize the Speaker of 
the House of Representatives, the Honorable Nancy Pelosi, for 1 minute.
  Ms. PELOSI. I thank Mr. Conyers, the Chair of the Judiciary 
Committee, for yielding and thank Mr. Reyes, the chairman of the 
Intelligence Committee, for bringing this legislation to the floor. 
They know, as does each and every one of us, that our primary 
responsibility is to protect the American people.
  Mr. Speaker, we take an oath of office, as has been referenced, to 
protect and defend the Constitution of the United States from all 
enemies foreign and domestic.
  In the preamble it states that one of our primary responsibilities is 
to provide for the common defense. We take those responsibilities 
seriously, and I don't take seriously any statements by some in this 
body that any person here is abdicating that responsibility.
  All of us understand also the role that intelligence plays. In 
protecting our troops, force protection, that used to be our primary 
responsibility and now, of course, Homeland Security is part of that.
  None of us would send our troops into harm's way without the 
intelligence to

[[Page 4400]]

perform their mission and keep them safe, although some have been 
willing to send our men and women in uniform into harm's way without 
the equipment they need to keep them safe, but we don't make any 
accusations against them that they are not patriotic Americans who 
don't want to protect the American people.
  Chairman Conyers and Chairman Reyes have already pointed out in some 
detail this legislation will meet our responsibility to protect America 
while also protecting our precious civil liberties. The President has 
said that our legislation will not make America safe. The President is 
wrong, and I think he knows it. He knows that our legislation contains 
within it the principles that were suggested by the Director of 
National Intelligence, Mr. McConnell, early on, as to what is needed to 
protect our people in terms of intelligence.

                              {time}  1300

  The administration demands that Congress grant immunity to companies 
for activities about which the President wants only a small number of 
Members of Congress, and no member of the judicial branch, deciding on 
any currently filed lawsuits to know anything about.
  The bill before us acknowledges that immunity for the companies may 
already exist under current law and allows that determination to be 
decided by a judge with due protection for classified information, not 
by hundreds of people who really do not have the facts.
  Why should the administration oppose a judicial determination of 
whether the companies already have immunity. Well, there are at least 
three explanations. First, the President knows that it's the 
administration's incompetence in failing to follow the procedures in 
statute is what has prevented immunity from being conveyed. That is one 
possibility. They simply didn't do it right.
  Second, the administration's legal argument that the surveillance 
requests were lawfully authorized was wrong, or public reports that the 
surveillance activities undertaken by the companies went far beyond 
anything about which any Member of Congress was notified, as is 
required by the law.
  None of these alternatives is attractive, but they clearly 
demonstrate why the administration's insistence that Congress provide 
retroactive immunity has never been about national security or about 
concerns for the companies. It has always been about protecting the 
administration.
  As important as the issue of immunity might be, it is chiefly 
important to the administration and the telecommunications companies as 
they look back to events that occurred as many as 6 years ago. What is 
truly important to the security of our country and the protections of 
our Constitution going forward are the amendments made to the FISA bill 
in title I in this bill that is on the floor today, the so-called 
surveillance title of the bill.
  The bill contains three of the essential provisions of the bill 
passed by the House in November and, in doing so, explicitly rejects 
the heart of the President's warrantless surveillance program. Those 
provisions are:
  One, the reinstatement that FISA remains the exclusive means to 
authorize electronic surveillance. The President likes to think he has 
inherent authority to surveil, to collect on anybody, and this bill 
restates that FISA is the exclusive authority. This was a point 
conceded to in 1978 when the Congress of the United States established 
the FISA law, passed the FISA law, which was signed by the President of 
the United States, thereby his recognition of Congress's ability to 
make the courts, the third branch of government, the exclusive 
authority for the collection of intelligence in the United States. That 
is exclusivity.
  Second, except in emergencies, FISA Court approval must take place 
before surveillance begins, but there are exceptions in case of 
emergency.
  Third, a refusal to follow the Senate in excluding, and this is very 
important because people are talking about the Senate bill as though it 
is some great thing. This is very important: A refusal to follow the 
Senate in excluding from the definition of electronic surveillance 
activities historically considered within the definition. In other 
words, if they don't want the law to apply to a particular activity, 
they will just say it doesn't fall into this bill.
  If the administration's change in the definition was accepted, FISA-
derived information, including U.S. person information, could be data-
mined with fewer protections than are currently in place under FISA. 
This is very important to each and every person in America.
  The President insists that we pass the Senate bill as is. Yet even 
that legislation's chief author, Chairman Rockefeller, agrees that many 
of the House provisions improve the Senate bill.
  This legislation before us today will ensure that our intelligence 
professionals have the tools they need to protect the American people. 
And the President knows it.
  This legislation will ensure that we protect what it means to be an 
American, our precious civil rights and civil liberties. Both goals are 
essential and both are achieved in this bill. I urge its passage.
  Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, this might be a good time to read excerpts from a letter 
to the Speaker. This letter was written 2 days ago by the Attorney 
General and by the Director of National Intelligence, and I think 
Members and the American people are going to be very interested in what 
these two individuals had to say.
  They expressed particular concern about requiring prior court 
approval to gather foreign intelligence from foreign targets located 
overseas.
  The letter says: ``Congress did not include such a requirement when 
it passed the original FISA statute, and with good reason. These 
foreign targets have no right to any court review of such surveillance 
under our Constitution. We know from experience that requiring prior 
court approval is a formula for delay. Thus, this framework would 
impede vital foreign intelligence collection and put the Nation at 
unnecessary and greater risk.''
  They conclude about this bill that it does not provide the 
intelligence community the tools it needs to collect effectively 
foreign intelligence information vital for the security of the Nation.
  Mr. Speaker, what else do we need to hear? Members need to know this.
  I reserve the balance of my time.
  Mr. REYES. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from 
Rhode Island (Mr. Langevin) who serves on our Intelligence Committee.
  Mr. LANGEVIN. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, I rise in support of H.R. 3773, a careful and reasoned 
approach to electronic surveillance. Though people have talked a lot 
about immunity, we must remember that because of changes in technology, 
this is a bill to update the way we conduct electronic surveillance.
  I approached this subject with two principles in mind. First, our 
surveillance must be effective. Second, the rights of Americans must be 
protected. On the second point, there is a real difference between the 
Senate and the House bills.
  The issue is how both bills handle the calls of Americans. Under the 
Senate bill, the DNI and the Attorney General approve surveillance and 
then go to the court, with no set timeline for ruling. Under the House 
bill, the program of surveillance, not the specific individual targets, 
is submitted to the court. The government will essentially ask the 
court: Is this method of handling the communications of Americans 
appropriate, careful, and, most importantly, constitutional?
  The approval of a program of surveillance allows the government to 
get approval before there is an operational requirement. So there will 
never be any operational sacrifice here. If it were going to slow down 
intelligence collection or cause operational problems, I can see where 
some might take issue with that. But the simple fact is that the way 
this bill is drafted, there

[[Page 4401]]

is no excuse for not getting the approvals in place in advance.
  I am all for strong intelligence authorities. The beauty of this bill 
is it combines that with care for our civil liberties, without 
sacrificing either.
  Mr. HOEKSTRA. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman 
from Missouri (Mr. Blunt), the distinguished minority whip.
  Mr. BLUNT. Mr. Speaker, I thank Mr. Hoekstra for the leadership he 
has given on this issue.
  The problem we have with the bill on the floor today is, in 
everything I read, it can't become law. That is one problem. A bigger 
problem is that it doesn't address the fundamental question of how we 
treat these companies for doing what we asked them to do after 9/11.
  It is clear from all of the facts that as the FISA law anticipated, 
that the leaders of the House and the leaders of the Senate on the 
Intelligence Committee would be informed of what was going on. And, in 
fact, in October of 2001 and November of 2001, in March of 2002, those 
leaders were informed. On our side, the ranking Democrat at the time is 
the current Speaker of the House. Porter Goss, the future CIA director, 
was the chairman of the committee. They were informed on all of those 
occasions, and these companies only have liability protection if they 
were pursuing what was given to them as a lawful government order; 
orders that Members of Congress, including the now Speaker, were told 
would be issued to these companies.
  This program doesn't work without voluntary compliance on the foreign 
side. It also doesn't work without subpoenas on the American side, the 
U.S. side. Every U.S. effort has to include a subpoena. The 1978 law 
anticipated that. The law we would like to have on the books today 
continues that. But for foreign subpoenas, to have to get a court order 
for a foreign request of somebody in a foreign country simply bogs this 
program down to the point it won't work. We proved that in July of last 
year when this FISA came to a screeching halt.
  This bill is not the improvement that we need. There is a bipartisan 
majority in the House ready to pass a bill that could go to the 
President today, be signed today.
  We are now 4 weeks away from the time when we said, if we just had a 
21-day extension, we would solve this problem. This problem needs to be 
solved. It needs to be solved now. I urge the majority to step back and 
bring a bill to the House that can pass and become law.
  I urge my colleagues to vote ``no'' on this replacement.
  Mr. CONYERS. Mr. Speaker, I recognize an invaluable member of the 
Judiciary Committee, Keith Ellison from Minnesota, for 1 minute.
  Mr. ELLISON. Mr. Speaker, today I rise to support the House 
Democratic FISA bill, a bill that provides for collection of data to 
protect America against people who would harm us, but also, and very 
importantly, provides court approval of acquisition and an ongoing 
process of review and oversight in order to protect Americans' privacy.
  The bill goes beyond the RESTORE Act which we passed in the House, 
and I supported, by adopting statutory protections for U.S. persons 
overseas to ensure that surveillance of their communications are always 
conducted through the courts.
  The House bill does not confer retroactive immunity on telecom 
carriers alleged to have participated under the President's warrantless 
surveillance program. It provides a mechanism for the carriers to 
assert existing immunity claims and to guarantee that they have a fair 
hearing in court currently prevented by the administration's assertion 
of the State secrets privilege.
  In order to fully ascertain the scope and legality of the TSP, the 
House bill also creates a bipartisan commission on warrantless 
electronic surveillance activities with strong investigatory powers.
  Mr. SMITH of Texas. Mr. Speaker, I reserve the balance of my time.
  Mr. HOEKSTRA. Mr. Speaker, I would like to recognize my colleague, 
the gentleman from Texas (Mr. Thornberry) for 3 minutes.
  Mr. THORNBERRY. Mr. Speaker, Chairman Conyers said a few moments ago 
the House will not be permitted to vote on the Senate bill because he 
has a better idea. Let me suggest three reasons why he does not have a 
better idea.
  Number one, the bill before us sets up a new process to adjudicate 
immunity. Now, if a company voluntarily answered the request of their 
government, they did not do so to get a chance to have another legal 
process, to pay some more lawyers to file some more motions. That is 
not what they were doing. They were doing it to answer the call of 
their country, and I think most Americans believe that Good Samaritans 
should be thanked rather than punished with a new legal process.
  But I would also suggest that this new legal process chills any hope 
of voluntary cooperation in the future, not just for intelligence but 
for quick response for law enforcement matters as well.
  I don't see how any company can meet the obligations of the laws this 
Congress has passed to its shareholders and others and voluntarily 
submit themselves to another legal process to pay some more lawyers and 
file some more motions.

                              {time}  1315

  Secondly, this bill requires court approval of processes, of 
procedures before foreign surveillance of foreign targets can ever 
begin.
  Now, under the Protect America Act, the FISA Court took months to 
approve the procedures. And so it's reasonable to assume it's going to 
take months to approve the procedures under this bill were it to become 
law. The problem is, you can't begin foreign surveillance of foreign 
targets under this law until those procedures are approved. And I am 
perplexed how Members on either side can feel comfortable having months 
more go by before we can have that intelligence information.
  Thirdly, this bill sets up a new commission. And I understand it may 
be politically desirable to set up a new commission and have new 
investigations and have some more folks on a commission looking to make 
their mark. I understand politically why that would be attractive. But 
it seems to me that, one, there is no need to do that. What do we have 
the Intelligence Committee for, if it is not to investigate and 
understand, as has been done thoroughly in this case. So I must 
conclude that this new commission must be an attempt to deflect 
responsibility away from those in this Congress who had the 
responsibility to oversee these programs.
  We have a better option. We should take it.
  Mr. CONYERS. I am pleased to yield 1\1/2\ minutes to the gentlelady 
from California (Ms. Harman), a former member of the Intelligence 
Committee. I wish I could give her more time.
  Ms. HARMAN. My oldest grandchild, Lucy, is 2 today. She, my other two 
grandchildren, and my four children are never out of my thoughts as I 
wrestle with what are the right and wise security policies to protect 
our country.
  I served 6 years on the Armed Services Committee, 8 on the 
Intelligence Committee, and 4 on the Homeland Security Committee where 
I chair its intelligence subcommittee.
  I received so-called ``Gang of Eight'' briefings on the operational 
details of the terrorist surveillance program from 2003 to 2006, and I 
regularly receive classified threat briefings.
  Some in this Chamber in both parties seek my views on security 
issues, and I hope my advice is helpful. On the matter before us it is 
as follows:
  First, the world is very dangerous and we need to protect against 
threats.
  Second, actions we take can and must comply fully with the rule of 
law. FISA has served us well for 30 years. Its framework is still 
sound.
  Third, FISA does need some tweaking, but the technical changes are 
not controversial.
  Fourth, FISA has already provided immunity for telecom firms which 
follow its provisions. Telecom firms are now protected under FISA.
  Fifth, telecom firms are now complying with FISA.

[[Page 4402]]

  And, sixth, press accounts, especially Monday's story in the Wall 
Street Journal, make clear there are other programs out there that 
haven't been told to Congress.
  We can't pass retroactive immunity when we don't know what we're 
talking about.
  So happy birthday, Lucy. May you grow up in a country with security 
and liberty.
  Passing the bill before us is a good start.
  Mr. HOEKSTRA. Mr. Speaker, at this time I would like to yield 2 
minutes to my colleague from the State of Michigan, a member of the 
Intelligence Committee, Mr. Rogers.
  Mr. ROGERS of Michigan. Mr. Speaker, two problems with where we're 
going: one is, this will, in effect, require intelligence officials to 
seek a Federal court warrant for foreign targets overseas. That is 
undeniable. Everybody in the intelligence community says it. The Senate 
even came across in a bipartisan bill, led by Democrats, who agree to 
the same principle and said that's the wrong direction to go to protect 
America.
  The other serious problem: one of your great distinguished Members, 
Elijah Cummings, took a courageous stand in a courageous moment when he 
had serious crime in his district in Baltimore. He went out, went on TV 
on a PSA and said, please cooperate with the local police to solve this 
crime. Please step up and cooperate so that we can solve these crimes 
together.
  What we are effectively doing today, we're effectively telling 
businesses, large and small, and citizens from neighborhoods to 
corporate citizens to individual citizens, everybody who every day 
across America says, I will cooperate with law enforcement to solve 
crime because it's the right thing to do, you send an absolute chilling 
effect across. And I've heard this from businesses not related to this 
particular issue, telecom companies, companies who cooperate on 
kidnappings, companies that cooperate on trying to find people who are 
fugitives, who have raped children, people who cooperate on catching 
drug dealers. They've said, you know, if you show up and ask me that, I 
want to help. But what this body is telling them, you might not be 
protected. It might not be just enough. And if you have enough money, 
and we have enough trial lawyers, you're going to find yourself in 
court.
  So what these people are saying is, maybe I can't cooperate with my 
government anymore. Maybe I can't, in good faith, like good Samaritans 
have done all 200-plus years of this great Nation, come forward and say 
we are in this together. We are united to stop crime, to keep our homes 
and neighborhoods safe and to protect our country from terrorism.
  The CIA case also said it's not good. The military leader said it's 
dangerous, the intelligence community said it's dangerous, and so did 
the Democrats in the Senate. Let's join them and do this right.
  Mr. CONYERS. Mr. Speaker, I'm going to recognize Barbara Lee, but I 
want my dear friend from Michigan to know you cannot give retroactive 
immunity when you don't know what you're immunizing. That's the 
problem.
  I turn now to the co-chair of the Progressive Caucus, a distinguished 
civil rights fighter who has her own experiences, and we yield proudly 
to Barbara Lee of California for 1 minute.
  Ms. LEE. I want to thank Chairman Conyers and Chairman Reyes for 
bringing this legislation to the floor which does contain the 
safeguards necessary to protect the liberties of the American people, 
while giving the intelligence community powers to protect our Nation, 
which are very important in this bill.
  Now, let me tell you, I know from personal experience about wiretaps 
during the J. Edgar Hoover period and the unwarranted domestic 
surveillance and wire tapping as a result of the Cointelpro program. 
Many innocent people, their lives were destroyed, personal information 
was gathered from innocent people, yes, including myself, who were no 
threat to national security. Dr. King and his family were the victims 
of government-sponsored wiretapping.
  We must never go down this road again. So I fully support this bill 
because it explicitly declares that the FISA Court is the sole 
authority for electronic surveillance. It prohibits this reverse 
targeting. It also makes sure that we do not provide retroactive 
immunity to telecom companies that participated in any illegal spying 
by this administration.
  This bill will protect America and, equally important, protect 
American civil liberties and values as guaranteed, mind you, guaranteed 
by the fourth amendment.
  Mr. HOEKSTRA. Mr. Speaker, Mr. Smith and I both have only one speaker 
remaining, so we would reserve our right to close in the order as 
determined.
  Mr. REYES. Mr. Speaker, I only have one more speaker remaining as 
well.
  Mr. CONYERS. Mr. Speaker, how much time have I remaining?
  The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers) 
has 2\3/4\ minutes remaining.
  Mr. CONYERS. The gentleman from Washington (Mr. Inslee), who has 
worked with us on this matter, is recognized for 1 minute.
  Mr. INSLEE. Mr. Speaker, from time to time, we are called to, again, 
define what it means to be an American. And this is never more so than 
when security concerns threaten our commitment to liberty. And at those 
moments, at this moment, we need to be imbued with the spirit of 1776, 
a spirit against tyranny, a spirit that recognizes that the rule of law 
is the ultimate bulwark of liberty.
  A Nation that threw off the shackles of King George should never 
yield to an executive who seeks to trample on the rule of law. Whether 
it was inconvenient, whether it was bothersome, whether it was 
frustrating, we should never yield to an executive who believes himself 
above the rule of law. We should never yield to an Executive that, 
instead of coming to Congress to change a law, simply decides to ignore 
it.
  We are nothing without this commitment. We are everything with it. 
Stand for liberty. Pass this bill.
  Mr. CONYERS. Mr. Speaker, I yield everything but 1 minute to the 
gentlelady from Illinois, Jan Schakowsky.
  The SPEAKER pro tempore. The gentlewoman from Illinois is recognized 
for 45 seconds.
  Ms. SCHAKOWSKY. This FISA legislation is proof that we can protect 
the American people, keep our country and our families safe without 
violating American's civil liberties. The Republicans have posed a 
false choice, tried to convince us, the American people, that the only 
way to protect this country from terrorists is to sacrifice our civil 
liberties, particularly when it comes to this administration perhaps 
illegally telling the telecommunications companies to share our private 
communications with them.
  The Republicans want to wave a wand, grant amnesty to the phone 
companies, retroactive immunity to turn over information about their 
customers, not only letting the companies off the hook, but protecting 
the administration from judicial scrutiny about its warrantless 
surveillance programs.
  This program, this legislation that we have introduced, is a fair way 
to resolve this conflict issue.
  Mr. CONYERS. Mr. Speaker, I yield to the gentlelady from Texas (Ms. 
Jackson-Lee) for a unanimous consent request.
  Ms. JACKSON-LEE of Texas. Having heard all of the answers to all of 
the questions that have been raised by the opposition, knowing that 
full justice, civil liberties and the protection is in this bill, I 
rise in support of the underlying bill.
  Mr. Speaker, I rise today in support of the Senate Amendment to H.R. 
3773, the Foreign Intelligence Surveillance Act (FISA). This body has 
worked diligently with our colleagues in the Senate to ensure that the 
civil liberties of American citizens are appropriately addressed.
  We have worked to not simply reconcile the Senate language with the 
RESTORE Act (H.R. 3773) which we passed in the House on November 15, 
2007, but to go beyond the RESTORE Act as part of FISA Reform 
legislation

[[Page 4403]]

by: Adopting provisions from the Senate bill that will for the first 
time provide statutory protections for U.S. persons overseas, that 
ensures surveillance of their communications are conducted through the 
courts; and Providing a mechanism for telecommunications carriers to 
prove their case that they did not engage in any wrongdoing and to 
guarantee due process with a fair hearing in court.
  Like the RESTORE Act, the FISA reform legislation provides for 
collection against terrorist organizations such as Al Qaeda, while 
providing prior court approval of acquisition and an on-going process 
of review and oversight in order to protect Americans' privacy.
  The revised House bill creates a bipartisan commission on Warrantless 
Electronic Surveillance Activities with strong investigatory powers in 
order to preserve the rule of law in pending and future lawsuits. This 
revised version of the bill continues to reiterate FISA's exclusive 
control for conducting foreign intelligence surveillance, and requires 
explicit statutory authorization for any means outside of FISA. This is 
an area where the House version has differed from the Senate.
  Homeland security is not a Democratic or a Republican issue, it is 
not a House or Senate issue; it is an issue for all Americans--all of 
us need to be secure in our homes, secure in our thoughts, and secure 
in our communications.
  I find it disturbing that our Republican colleagues will not join us 
to ensure that Americans are safe here and abroad. Disturbing that they 
do not recognize that we must protect the civil liberties of this 
nation just as we protect American lives.
  Mr. Speaker, in August of this year, I strongly opposed S. 1927, the 
so-called ``Protect America Act'' (PAA) when it came to a vote on the 
House floor. Had the Bush Administration and the Republican-dominated 
109th Congress acted more responsibly in the two preceding years, we 
would not have been in the position of debating legislation that had 
such a profoundly negative impact on the national security and on 
American values and civil liberties in the crush of exigent 
circumstances. As that regrettable episode clearly showed, it is true 
as the saying goes that haste makes waste.
  The PAA was stampeded through the Congress in the midnight hour of 
the last day before the long August recess on the dubious claim that it 
was necessary to fill a gap in the nation's intelligence gathering 
capabilities identified by Director of National Intelligence Mike 
McConnell. In reality it would have eviscerated the Fourth Amendment to 
the Constitution and represented an unwarranted transfer of power from 
the courts to the Executive Branch and a Justice Department led at that 
time by an Attorney General whose reputation for candor and integrity 
was, to put it charitably, subject to considerable doubt.
  Under the House bill, the Foreign Intelligence Surveillance Court, 
FISC is indispensable and is accorded a meaningful role in ensuring 
compliance with the law. The bill ensures that the FISC is empowered to 
act as an Article III court should act, which means the court shall 
operate neither as a rubber-stamp nor a bottleneck. Rather, the 
function of the court is to validate the lawful exercise of executive 
power on the one hand, and to act as the guardian of individual rights 
and liberties on the other.
  Moreover, Mr. Speaker, it is important to point out that the loudest 
demands for blanket immunity did not come from the telecommunications 
companies but from the administration, which raises the interesting 
question of whether the administration's real motivation is to shield 
from public disclosure the ways and means by which government officials 
may have ``persuaded'' telecommunications companies to assist in its 
warrantless surveillance programs. I call my colleagues' attention to 
an article published in the Washington Post in which it is reported 
that Joseph Nacchio, the former CEO of Qwest, alleges that his company 
was denied NSA contracts after he declined in a February 27, 2001 
meeting at Fort Meade with National Security Agency, NSA, 
representatives to give the NSA customer calling records.
  To give a detailed illustration of just how superior the RESTORE Act 
is to the ill-considered and hastily enacted Protect America Act, I 
wish to take a few moments to discuss an important improvement in the 
bill that was adopted in the full Judiciary Committee markup.
  My amendment, which was added during the markup, made a constructive 
contribution to the RESTORE Act by laying down a clear, objective 
criterion for the administration to follow and the FISA court to 
enforce in preventing reverse targeting.
  ``Reverse targeting,'' a concept well known to members of this 
Committee but not so well understood by those less steeped in the 
arcana of electronic surveillance, is the practice where the Government 
targets foreigners without a warrant while its actual purpose is to 
collect information on certain U.S. persons.
  One of the major concerns that libertarians and classical 
conservatives, as well as progressives and civil liberties 
organizations, have with the PAA is that the understandable temptation 
of national security agencies to engage in reverse targeting may be 
difficult to resist in the absence of strong safeguards in the PAA to 
prevent it.
  My amendment reduces even further any such temptation to resort to 
reverse targeting by requiring the administration to obtain a regular, 
individualized FISA warrant whenever the ``real'' target of the 
surveillance is a person in the United States.
  The amendment achieves this objective by requiring the administration 
to obtain a regular FISA warrant whenever a ``significant purpose of an 
acquisition is to acquire the communications of a specific person 
reasonably believed to be located in the United States.'' The current 
language in the bill provides that a warrant be obtained only when the 
Government ``seeks to conduct electronic surveillance'' of a person 
reasonably believed to be located in the United States.
  It was far from clear how the operative language ``seeks to'' is to 
be interpreted. In contrast, the language used in my amendment, 
``significant purpose,'' is a term of art that has long been a staple 
of FISA jurisprudence and thus is well known and readily applied by the 
agencies, legal practitioners, and the FISA Court. Thus, the Jackson 
Lee Amendment provides a clearer, more objective, criterion for the 
administration to follow and the FISA court to enforce to prevent the 
practice of reverse targeting without a warrant, which all of us can 
agree should not be permitted.
  Mr. Speaker, nothing in the Act or the amendments to the Act should 
require the Government to obtain a FISA order for every overseas target 
on the off chance that they might pick up a call into or from the 
United States. Rather, what should be required, is a FISA order only 
where there is a particular, known person in the United States at the 
other end of the foreign target's calls in whom the Government has a 
significant interest such that a significant purpose of the 
surveillance has become to acquire that person's communications.
  This will usually happen over time and the Government will have the 
time to get an order while continuing its surveillance. It is the 
national security interest to require it to obtain an order at that 
point, so that it can lawfully acquire all of the target person's 
communications rather than continuing to listen to only some of them.
  It is very important to me, and it should be very important to 
Members of this body that we require what should be required in all 
cases--a warrant anytime there is surveillance of a United States 
citizen.
  In short, the Senate amendment to the House version makes a good bill 
even better. For this reason alone, civil libertarians should 
enthusiastically embrace H.R. 3773.
  Nearly two centuries ago, Alexis de Tocqueville, who remains the most 
astute student of American democracy, observed that the reason 
democracies invariably prevail in any martial conflict is because 
democracy is the governmental form that best rewards and encourages 
those traits that are indispensable to martial success: initiative, 
innovation, resourcefulness, and courage.
  As I wrote in the Politico, ``the best way to win the war on terror 
is to remain true to our democratic traditions. If it retains its 
democratic character, no nation and no loose confederation of 
international villains will defeat the United States in the pursuit of 
its vital interests.''
  Thus, the way forward to victory in the war on terror is for the 
United States country to redouble its commitment to the Bill of Rights 
and the democratic values which every American will risk his or her 
life to defend. It is only by preserving our attachment to these 
cherished values that America will remain forever the home of the free, 
the land of the brave, and the country we love.
  Mr. Speaker, FISA has served the Nation well for nearly 30 years, 
placing electronic surveillance inside the United States for foreign 
intelligence and counterintelligence purposes on a sound legal footing, 
and I am far from persuaded that it needs to be jettisoned.
  However, I know that FISA as it is run currently attempts to 
circumvent the Bill of Rights and the civil liberties of the American 
people. I continue to insist upon individual warrants, based on 
probable cause, when surveillance is directed at people in the United 
States. The Attorney General must still be required to submit 
procedures for international surveillance to the Foreign Intelligence 
Surveillance Court for

[[Page 4404]]

approval, but the FISA Court should not be allowed to issue a ``basket 
warrant'' without making individual determinations about foreign 
surveillance.
  In all candor, Mr. Speaker, I must restate my firm conviction that 
when it comes to the track record of this President's warrantless 
surveillance programs, there is still not enough on the public record 
about the nature and effectiveness of those programs, or the 
trustworthiness of this administration, to indicate that they require a 
blank check from Congress.
  The Bush administration did not comply with its legal obligation 
under the National Security Act of 1947 to keep the Intelligence 
Committees ``fully and currently informed'' of U.S. intelligence 
activities. Congress cannot continue to rely on incomplete information 
from the Bush administration or revelations in the media. It must 
conduct a full and complete inquiry into electronic surveillance in the 
United States and related domestic activities of the NSA, both those 
that occur within FISA and those that occur outside FISA.
  The inquiry must not be limited to the legal questions. It must 
include the operational details of each program of intelligence 
surveillance within the United States, including: (1) who the NSA is 
targeting; (2) how it identifies its targets; (3) the information the 
program collects and disseminates; and most important, (4) whether the 
program advances national security interests without unduly 
compromising the privacy rights of the American people.
  Given the unprecedented amount of information Americans now transmit 
electronically and the post-9/11 loosening of regulations governing 
information sharing, the risk of intercepting and disseminating the 
communications of ordinary Americans is vastly increased, requiring 
more precise--not looser--standards, closer oversight, new mechanisms 
for minimization, and limits on retention of inadvertently intercepted 
communications.
  Mr. Speaker, I encourage my colleagues to join me in a vote of 
support for the FISA Amendments Act, H.R. 3773, as it seeks to balance 
our Nation's securities and our civil liberties.
  Mr. HOEKSTRA. Mr. Speaker, before I close, could the Speaker tell me 
exactly how much time I have left.
  The SPEAKER pro tempore. The gentleman from Michigan (Mr. Hoekstra) 
has 3 minutes remaining; the gentleman from Texas (Mr. Smith) has 2\1/
2\ minutes remaining; the gentleman from Michigan (Mr. Conyers) has 1 
minute remaining; and the gentleman from Texas (Mr. Reyes) has 1\1/2\ 
minutes remaining.
  Mr. HOEKSTRA. Mr. Speaker, I yield myself the balance of my time.
  What is this Congress thinking? Some of my colleagues are scaring the 
American people into believing that the men and women in the 
intelligence community are spying on them. In reality, our intelligence 
professionals are focused solely on identifying and stopping the threat 
from radical jihadists.
  What's this Congress thinking? Some of my colleagues want to reward 
opportunist trial lawyers who are suing the very companies that stood 
up in America's hour of need. We should recognize what these companies 
did and protect them from these frivolous lawsuits.
  What is this Congress thinking? Some of the key leadership in this 
House, including this current Speaker, were fully briefed and involved 
in developing the strategies that were implemented to keep America safe 
in the aftermath of 9/11. Now some are running from those decisions. 
They should take responsibility for their actions.

                              {time}  1330

  At the funerals last week for the victims of the recent terrorist 
attack in Jerusalem, Rabbi Shapira delivered a eulogy charging the 
government with not doing enough to keep Israel safe, for not 
delivering the strong leadership to face down a deadly enemy. That same 
enemy wants to attack America.
  The 9/11 Commission said, ``Terrorists could acquire without great 
expense communications devices that were varied, global, instantaneous, 
complex, and encrypted.''
  As Rabbi Shapira last week questioned the leadership of his country, 
and in light of what the 9/11 Commission told us years ago, I ask the 
leadership of this House are we doing enough.
  Is the 2001 FISA law adequate? The answer has been, and continues to 
be, a resounding ``no.''
  Are we doing enough to protect America, our troops, and our allies, 
when we go home without finishing this crucial work on intelligence 
surveillance? Is it acceptable to have our intelligence capabilities 
continue to erode? Continuing down this path is dangerous.
  I hope that when we return, America will not have its own Rabbi 
Shapira, our own Rabbi Shapira asking, Why did Congress go home without 
finishing its work? Why didn't the Democratic Congress do better? Why 
didn't the House recognize the danger and the threat?
  We should complete this work today. We should vote on the Senate 
bill. Why are we going home? Why are we going home with the work 
unfinished one more time?
  With that, I yield back the balance of my time.
  Mr. REYES. Mr. Speaker, before I yield the balance of our time, I 
would like to insert into the Record at this point several letters of 
endorsement for H.R. 3773.

                                              Center for Democracy


                                               and Technology,

                                   Washington, DC, March 12, 2008.
     Re Vote ``Yes'' on H.R. 3773, the FISA Amendments Act.

       Dear Representative: We are writing to urge you to support 
     legislation to amend the Foreign Intelligence Surveillance 
     Act that the House of Representatives will soon consider. The 
     bill, an amendment in the nature of a substitute to H.R. 
     3773, is a responsible compromise between the House RESTORE 
     Act and the Senate FISA legislation. This compromise includes 
     most of the civil liberties protections in the RESTORE Act 
     while also providing the intelligence agencies the 
     flexibility they need to monitor the international 
     communications of people believed to be abroad. The 
     legislation would replace the Protect America Act (``PAA,'' 
     Pub. L. No. 110-55), which became law in August 2007 and 
     which expired a few weeks ago.
       Like the RESTORE Act, the compromise bill permits 
     authorization of surveillance programs targeting persons 
     abroad who may be communicating with people in the United 
     States. The compromise bill makes it clear that the 
     government does not have to make an individualized showing of 
     probable cause for targeting any person reasonably believed 
     to be abroad, unless that person is a U.S. citizen or green 
     card holder. It provides intelligence agencies great 
     flexibility in adding new surveillance targets to existing 
     authorizations. The compromise bill also makes it clear that 
     no order is required for surveillance of foreign-to-foreign 
     communications. The compromise bill includes no blanket 
     immunity from civil liability for telecommunications carriers 
     who assisted with illegal warrantless surveillance from 
     October 2001 through January 17, 2007, but it does allow 
     carriers to defend themselves against those lawsuits while 
     protecting classified information.
       Unlike the PAA, the compromise bill includes significant 
     civil liberties protections that merit your support.
       Prior Court Approval. Most importantly, the compromise bill 
     requires court approval of surveillance procedures prior to 
     the commencement of surveillance. Except in emergencies, the 
     compromise bill bars the executive branch from commencing 
     surveillance unless the Foreign Intelligence Surveillance 
     Court (``FISA court'') has approved of targeting and 
     minimization procedures designed to protect Americans. The 
     targeting procedures must be reasonably designed to ensure 
     that communications to be acquired will be those of persons 
     reasonably believed to be located outside the United States. 
     The minimization procedures limit the circumstances in which 
     a U.S. citizen or green card holder can be identified when 
     information resulting from intelligence surveillance is 
     disseminated. We are disappointed that under the compromise 
     bill, the authorization for surveillance comes from the 
     Director of National Intelligence (``DNI'') and the Attorney 
     General (``AG''), and not from the FISA court, as would have 
     been provided under the RESTORE Act. While we would have 
     preferred the RESTORE Act approach, surveillance under both 
     bills cannot commence unless the FISA court has first 
     approved the procedures under which it would be conducted.
       Court Compliance Assessment. The compromise bill explicitly 
     authorizes the FISA court not only to assess the adequacy of 
     surveillance procedures at the front end, but also to assess 
     whether those procedures are being complied with on a going 
     forward basis. It provides that the court shall assess 
     compliance with the minimization procedures it has approved, 
     and it acknowledges that nothing in the bill prohibits the 
     FISA court from having inherent authority to assess 
     compliance with those procedures and other procedures it has 
     approved. While the extent of the court's inherent authority 
     is unclear, we understand that the Administration has agreed 
     that the court has inherent authority to assess compliance.
       Prevention of Reverse Targeting. The compromise bill bars 
     the targeting of a person

[[Page 4405]]

     reasonably believed to be outside the United States for the 
     purpose of targeting a particular, known person reasonably 
     believed to be in the United States. A number of provisions 
     support this bar. They help ensure that surveillance targeted 
     at persons abroad will not be used to circumvent 
     individualized court order requirements that protect 
     Americans from unwarranted surveillance. The bill requires 
     the AG, in consultation with the DNI, to adopt guidelines to 
     ensure compliance with the reverse targeting limitation. 
     Those guidelines must contain criteria for determining 
     whether a ``significant purpose'' of an acquisition is to 
     acquire the communications of a specific, known U.S. citizen 
     or lawful permanent resident reasonably believed to be in the 
     United States. Those criteria must in turn reflect 
     consideration of criteria listed in the bill that tend to 
     show whether a person in the U.S. has become of significant 
     intelligence interest. The guidelines must be submitted to 
     Congress. AG/DNI certifications submitted to the FISA court 
     in connection with authorized surveillance are reviewed by 
     the FISA court for completeness, and must attest that 
     guidelines meeting the reverse targeting limitation have been 
     adopted. The Inspectors General and the AG/DNI both report to 
     Congress on whether the reverse targeting guidelines are 
     being followed.
       FISA Exclusivity. The compromise bill takes a significant 
     step toward the goal of clarifying that FISA is the exclusive 
     means of conducting surveillance in the United States for 
     foreign intelligence purposes. It does this by cutting off 
     the argument advanced by the Administration that Congress may 
     implicitly authorize warrantless surveillance when it 
     authorizes the use of force following an attack on the United 
     States, or when it passes other legislation. Under the bill, 
     such authorization would need to be explicit.
       Telecom Immunity. Unlike the Senate bill, the compromise 
     bill wisely rejects proposals to grant blanket retroactive 
     immunity to telecommunications carriers that assisted with 
     illegal warrantless surveillance for more than five years 
     following the attacks of September 11, 2001. Telecoms should 
     be immune when they assist surveillance that meets the 
     statutory requirements, and should face civil liability when 
     they assist with requests for assistance with unlawful 
     surveillance. The compromise bill preserves this incentive 
     system, which helps ensure that telecoms prevent unlawful 
     surveillance. In lieu of retroactive immunity, the compromise 
     bill frees telecoms to present in court information tending 
     to show that they complied with the law, even though such 
     information may be subject to the state secrets privilege. It 
     signals the courts that such submissions must be protected 
     from disclosure and should be handled in accordance with the 
     relevant provision of FISA, Section 106(f).
       The compromise bill also includes the following significant 
     provisions:
       A December 31, 2009 sunset to prompt Congress to reconsider 
     the legislation in a timely manner, and to encourage 
     Executive branch compliance with reporting duties imposed in 
     the legislation and with congressional requests for 
     information;
       An Inspectors General audit of post 9-11 warrantless 
     surveillance that may represent the best chance of shedding 
     light on this surveillance, to the extent consistent with 
     national security concerns; and
       A requirement for court orders based on probable cause for 
     surveillance of Americans and green card holders who are 
     believed to be abroad, in lieu of the Attorney General 
     certification of probable cause now required by executive 
     order.
       For all of these reasons, we encourage you to vote for the 
     compromise bill when it is considered by the House of 
     Representatives. It represents a responsible effort to 
     preserve both liberty and security, and it is legislation the 
     Administration would be wise to support.
       For more information, please see our latest policy brief on 
     FISA legislation (http://www
.cdt.org/publications/policyposts/2008/3) or contact the 
     Director of CDT's Project on Freedom, Security & Technology, 
     Gregory T. Nojeim, at 202/637-9800 x113.
           Sincerely,
     Leslie Harris,
       President and CEO.
     Gregory T. Nojeim,
       Director, Project on Freedom, Security & Technology.
                                  ____

                                               Center for National


                                             Security Studies,

                                                   Washington, DC,
                                                   March 12, 2008.
     Re H.R. 3733 Substitute Amending the Foreign Intelligence 
         Surveillance Act.

     Hon. John Conyers,
     Chairman, Judiciary Committee,
     Hon. Silvestre Reyes,
     Chairman, Permanent Select Committee on Intelligence, House 
         of Representatives, Washington, DC.
       Dear Chairmen Conyers and Reyes: We write on behalf of the 
     Center for National Security Studies, which is the only 
     organization whose sole mission is to work to protect civil 
     liberties and human rights in the context of national 
     security issues. For more than thirty years, the Center has 
     worked to find solutions that both respect civil liberties 
     and advance national security interests. The Center advocated 
     for constitutional protections in the Foreign Intelligence 
     Surveillance Act when it was first enacted and has litigated 
     and repeatedly testified against unconstitutional government 
     surveillance since then.
       We are writing to outline our views on the substitute bill, 
     which we understand will be brought to the floor for a vote 
     this week.
       The new bill (H.R. 3773 substitute) is substantially better 
     than the Protect America Act enacted in August or the bill 
     passed by the Senate last month. The substitute contains 
     strong reporting requirements that will ensure that Congress 
     obtains access to the information needed for public and 
     congressional consideration of what permanent amendments 
     should be made to the FISA. At the same time, the bill would 
     authorize the surveillance of Americans' international 
     communications without a warrant in some circumstances where 
     we believe that the Fourth Amendment requires a warrant. 
     However, the bill contains important protections against such 
     unconstitutional surveillance, many of which were not 
     included in the bill passed by the Senate. Given the votes 
     for that severely flawed bill and the Protect America Act, we 
     welcome this substitute as an important step toward restoring 
     constitutional privacy protections and congressional and 
     public oversight.
       A. The new bill contains important provisions to establish 
     accountability for the illegal surveillance by this 
     administration as well as guarantees for future oversight. In 
     particular, and unlike the bill passed by the Senate, it 
     contains:
       1. A December 2009 sunset so a new Congress will revisit 
     these temporary powers;
       2. A required Inspector General audit of all warrantless 
     electronic surveillance and a public report, which will 
     ensure that information about past programs is preserved and 
     reviewed;
       3. Better congressional reporting requirements about future 
     surveillance;
       4. Creation of a commission appointed by Congress with 
     subpoena power to investigate and report to the American 
     people about the Administration's warrantless surveillance; 
     and
       5. No retroactive immunity for the telecommunications 
     carriers that carried out the warrantless surveillance of 
     Americans' communications.
       We applaud your efforts to require an accounting of the 
     administration's past illegal surveillance of Americans. The 
     Inspector General audit, the commission, and the other 
     congressional and public reporting requirements would lay the 
     groundwork for the next administration and the next Congress 
     to gain a full understanding of this administration's illegal 
     surveillance, its underlying interpretations of applicable 
     laws, and the impact of any changes to FISA this year. This 
     bill would help ensure that more information, not just the 
     administration's rhetoric and selective disclosures, are made 
     available to Congress, and will give Congress and the 
     American people the opportunity to assess surveillance 
     procedures on the basis of a complete record in 2009. In this 
     connection, we applaud your commitment to revisiting in 
     advance of that sunset date what the substantive standards 
     and procedures for surveillance of Americans should be in 
     order to better protect Americans' constitutional rights and 
     ensure effective national security measures.
       B. The bill also contains stronger judicial review 
     procedures than does the Senate bill.
       1. It does not contain the rewrite of the definition of 
     ``electronic surveillance'' contained in the Senate bill, 
     which would have weakened even further the FISA's protections 
     for the rights of people in the U.S.
       2. It requires judicial review in advance of surveillance 
     except in emergencies.
       3. It contains specific protections from the RESTORE Act 
     for Americans' international communications.
       4. It requires a court order based on probable cause to 
     target Americans who are overseas. (This requirement is also 
     in the Senate bill.)
       5. The bill also reinforces that surveillance must be 
     conducted within the requirements of the FISA or federal 
     criminal law and not at the President's say-so.
       In sum, the bill provides many more protections than any 
     proposal the administration has helped draft on these issues, 
     including the bill passed by the Senate last month.
       Thank you for your consideration of our views.
           Sincerely,
     Kate Martin,
       Director.
     Lisa Graves,
       Deputy Director.
                                  ____

                                                   March 12, 2008.

Groups Urge Further Investigation of Telecom's Actions Before Any Vote 
                        on Retroactive Immunity

       Dear Member of Congress: Our thirty-four organizations 
     write to support the March 6 Dear Colleague letter on telecom 
     immunity legislation from House Energy and Commerce Committee 
     Chairman John Dingell, Subcommittee on Telecommunications

[[Page 4406]]

     and the Internet Chairman Edward Markey, and Subcommittee on 
     Oversight and Investigations Chairman Bart Stupak. These 
     respective Chairs urged Congress to uphold its duty to make 
     an informed decision by first learning and evaluating ``all 
     the facts'' prior to any vote on immunity. They specifically 
     referenced a whistleblowing disclosure from Mr. Babak Pasdar 
     whose affidavit was distributed last week to all House 
     offices. We ask the House to support the chairmen and not 
     grant retroactive immunity as part of any bill to amend the 
     Foreign Intelligence Surveillance Act.
       The Dear Colleague letter summarized a threat to privacy 
     rights that is the bottom line in Mr. Pasdar's affidavit: 
     That an unnamed major wireless telecommunications carrier may 
     have given the government unmonitored access to data 
     communications from that company's mobile devices, including 
     e-mail, text messages, and Internet use.
       Mr. Pasdar's statement describes a mysterious ``Quantico 
     Circuit'' with apparently unfettered access to this carrier's 
     mobile device data network as well as its core business 
     network, which includes billing records and fraud-detection 
     information. The other end of that Quantico Circuit may have 
     had capabilities to physically track the whereabouts of 
     innocent subscribers and monitor communications and other 
     personal, behavioral habits. Yet, according to Mr. Pasdar, 
     the line was configured so that the carrier could have no 
     record of what information had been transmitted. Of equal 
     concern was his allegation that there was no security to 
     protect this line--an unheard of vulnerability in a carrier 
     environment.
       Mr. Dingell, Mr. Markey, and Mr. Stupak are right. Mr. 
     Pasdar's concerns are strikingly similar to those raised by 
     another whistleblower, Mr. Mark Klein from AT&T. Their 
     combined disclosures raise grave questions. For example, who 
     was at the other end of the Quantico Circuit, and what 
     information have they been obtaining? Does such access 
     comport with long-standing federal law? Is the circuit legal? 
     Is its apparent lack of security legal or wise? How long has 
     it been in operation? Who paid for construction and operation 
     of the Quantico Circuit? Was the telecom paid by its 
     recipients for using the circuit? What were the terms?
       You must get answers to these questions to make an informed 
     decision about what the Senate's broad retroactive telecom 
     immunity provision would sweep in. Congress should schedule 
     hearings and exercise any other investigative authority 
     necessary to determine the truth about our privacy and 
     telecom companies--before Congress votes on any bill that 
     would give amnesty to these companies.
       We urge you not to retreat on the immunity issue in the 
     face of Administration scare tactics. A rush to judgment 
     would not improve national security, and would unnecessarily 
     jeopardize our rights to privacy. Four experts and former 
     aides to the current Director of National Intelligence 
     explained last week that alternate authority exists under 
     current law to continue ongoing surveillance for up to a 
     year, as well as to obtain new approvals as needed. No 
     special immunity is needed, as the FISA court can order 
     telecoms to cooperate with lawful foreign intelligence 
     surveillance.
       If Messrs. Pasdar and Klein are telling the truth, they 
     have described the tip of an iceberg. Congress must find out 
     what is underneath. Accordingly, we urge you to investigate 
     these matters fully and not grant retroactive immunity in the 
     meantime.
           Sincerely,
         Christopher Finan, President, American Booksellers 
           Foundation for Free Expression; Nancy Talanian, 
           Director, Bill of Rights Defense Committee; Chief Gary 
           Harrison, Chickaloon Village, Alaska; Lyn Hurwich, 
           President, Circumpolar Conservation Union; Jesselyn 
           Radack, Coalition for Civil Rights and Democratic 
           Liberties; Matthew Fogg, Congress Against Racism and 
           Corruption in Law Enforcement (CARCLE); Ben Smilowitz, 
           Disaster Accountability Project; Dr. Jim Murtagh, 
           Doctors for Open Government (DFOG); Jim Babka, 
           President, DownsizeDC.org, Inc.; John Richard, 
           Director, Essential Information.
         George Anderson, Ethics in Government Group, (EGG); Mike 
           Stollenwerk, Fairfax County Privacy Council; Steven 
           Aftergood, Project Director, Federation of American 
           Scientists; Conrad Martin, Executive Director, Fund for 
           Constitutional Government; Gwen Marshall, Co-chairman, 
           Georgians for Open Government; Tom Devine, Legal 
           Director, Government Accountability Project; James C. 
           Turner, Executive Director, HALT, Inc.--An Organization 
           of Americans for Legal Reform; Helen Salisbury, MD, 
           Health Integrity Project; Scott Armstrong, President, 
           Information Trust; Michael Ostrolenk, National 
           Director, Liberty Coalition.
         Dr. Janet Chandler, Co-Director, TAF Mentoring Project; 
           Joan E. Bertin, Esq., Executive Director, National 
           Coalition Against Censorship; Zena D. Crenshaw, 
           Executive Director, National Judicial Conduct and 
           Disability Law Project, Inc.; Mike Kohn, General 
           Counsel, National Whistleblower Center; Ron Marshall, 
           Chairman, The New Grady Coalition; Sean Moulton, 
           Director, Federal Information Policy OMB Watch; Patrice 
           McDermott, Director, OpenTheGovernment.org; Darlene 
           Fitzgerald, Patrick Henry Center; David Arkush, 
           Director, Congress Watch Public Citizen; John W. 
           Whitehead, President, Rutherford Institute; Daphne 
           Wysham, Director, Sustainable Energy and Economy 
           Network; Kevin Kuritzky, The Student Health Integrity 
           Project (SHIP); Jeb White, President, and C.E.O., 
           Taxpayers Against Fraud; Dane von Breichenruchardt, 
           President U.S. Bill of Rights Foundation; Linda Lewis, 
           USDA Homeland Security Specialist (retired).

  Mr. Speaker, I now yield the remaining time to the gentleman from 
Massachusetts (Mr. Tierney), a valued and distinguished member of the 
Intelligence Committee.
  Mr. TIERNEY. Mr. Speaker, over history, and particularly since 1970, 
we have been able to find balance of getting the necessary intelligence 
collection and also having the protection of our liberties and our 
constitutional rights; through wars, in fact through the Cold War, 
which are much more severe existential threats than we see today, to a 
Cold War where we had nuclear powers that we thought were ready to 
attack us. We didn't know when and we didn't know to what degree. We 
never found it necessary to totally abdicate our constitutional rights 
and privileges. It is unnecessary for us to do that. It is shameful 
that some think that now is an opportunity for us to do that.
  The legislation before us today allows us to, in timely ways, collect 
all of the intelligence we need. It allows us to do it before a court 
order in cases of emergency. It allows us to do it without delay. It 
allows us to have provisions for oversight. It allows us to do 
everything to protect this country and it protects our civil liberties.
  We have a situation with phone companies now wanting immunity. 
They've always had immunity. The question is did they go for it. Did 
they have a court order or did they have the proper certification? Why 
won't the White House let all Members of Congress see that? It would 
answer the questions if they saw the documents.
  All Members of Congress should see the Presidential order and discuss 
whether the breadth and scope was so breathtaking that they would rush 
to make sure that courts intervene to make sure we had the 
constitutional protections there and make sure that we saw the memos 
that were there for legal justification and whether or not they weren't 
farcical in some respects and make sure that we saw what went on 
between the companies and the administration.
  If the companies think that they have reason to believe that, despite 
the fact that they didn't take advantage of their immunity provisions, 
they still have a claim of defense, we've provided a way for them to go 
to court so they can make that case. Going forward, they have immunity 
and a way to protect themselves in the past.
  Let's get over the nonsense and pass this law.
  Mr. SMITH of Texas. Mr. Speaker, I yield the balance of my time to 
the gentleman from California (Mr. Daniel E. Lungren), a member of the 
Judiciary Committee and a member of the Homeland Security Committee.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, oftentimes what is 
said on this floor reveals the differences between the two parties or 
the difference between the two approaches. The gentleman who just spoke 
before me made an allegation about the breathtaking and overwhelming 
nature of the President's request for information. Frankly, I thought 
what was at stake at the time was the breathtaking and overwhelming 
threat that this Nation faced after 9/11. That's what the President was 
responding to. That's what the President utilized in his request of 
American companies that come to the aid of their country. And here we 
stand saying we cannot reward them except to give them lawsuits.
  The gentleman from Texas (Mr. Reyes) says if the companies are 
innocent, as if there is some question. I sat

[[Page 4407]]

through all of those briefings. There is, in my judgment, not one iota 
of evidence that the companies acted inappropriately whatsoever. Not 
one iota of evidence sitting there after question after question after 
question; yet, on this floor, we raised the very question of those 
companies by saying if they are innocent. And what does Mr. Reyes say? 
If they are innocent, then it will be decided the good old American 
way: Go to court.
  Well, I'm a lawyer, but I don't think most Americans think the 
American way in every instance is to go to court. If you look at the 
legislation we have before us, it is rewarding the Good Samaritans with 
a lawsuit.
  There is a fig leaf here, yes. Now the majority side says, You know, 
there is a problem that we have to address with respect to 
telecommunications companies. That's progress, because when we were 
arguing on the floor with your previous provisions, you didn't even 
admit that. Now you do it, and now you say we are going to take care of 
it by the State's secrets doctrine and by going to a secret court 
proceeding.
  It is a fig leaf to allow Members to vote for a bill you know is 
never going to become law. It is not effective. How do I know? Twenty-
five attorneys general of the United States say it doesn't work. They 
say support the provision that's contained in the Senate bill. 
Democrats and Republicans alike from Texas, from North Carolina, from 
Oklahoma, from Florida, from Alabama, Arkansas, Alaska, Colorado, 
Georgia, Idaho, Indiana, Kansas, Maryland, Michigan, Nebraska, New 
Hampshire, North Dakota, Rhode Island, South Dakota, Virginia, West 
Virginia, Washington, Utah, South Carolina, and Pennsylvania.
  No, Mr. Speaker, the President is not wrong. No, Mr. Speaker, he is 
not doing this to protect himself. He's doing it as these attorneys 
general of the United States recognize to allow us to go forward in 
protecting the American people.
  Don't harm these telecommunications companies with friendly fire.
  Mr. CONYERS. Mr. Speaker, it's my privilege to yield the balance of 
our time to the majority leader, Steny Hoyer, whose legal expertise has 
held him in good stead over the months that we've worked on the Foreign 
Intelligence Surveillance Act.
  Mr. HOYER. Mr. Speaker, this is indeed an important day for our 
country, for the House of Representatives, and for the American people. 
An important day because we focus on the protection that we owe to our 
people and to our country, not only from terrorists but from those who 
would undermine the Constitution of the United States.
  Let me just briefly put in context where we are today some 7 years 
and 2 months after the start of this administration. From 2001 to 2006, 
the President of the United States did not veto a single bill. Why did 
he not veto a single bill? Because the Congress would not send him a 
bill that he did not want sent to him. It was a complacent, complicit 
Congress. And as a result of that complacency of the representatives of 
the American people, the administration came to believe that it could 
do anything it wanted without oversight or accountability.
  And because of that, when we were put at risk by 9/11, the 
administration's response, perhaps led by the Vice President, was that 
we do not need to follow the law. There was a law in place. It's still 
in place. It still provides for the protection of the American people. 
It's called the Foreign Surveillance Intelligence Act. But as too often 
has been the case in this administration, they chose not to follow the 
law. They chose, instead, to follow their own predilections. And that's 
why we are here today.
  In addition to that, we were in a condition where technology had 
changed. The administration was absolutely correct on that point. And 
both the Intelligence Committee in the Senate and the Intelligence 
Committee in the House knew they had to respond to that. As a matter of 
fact, Mr. Hoekstra and Ms. Harman, as the chairman and ranking member, 
and Mr. Goss prior to that, knew that we had to move towards that. That 
is now a result of the legislation we see before us.
  My good friend and distinguished colleague, the former attorney 
general of the State of California who's been in this body for some 
years. He was here, then he went back to California. He read from the 
letter of the attorneys general. One of them was Maryland. I talked to 
him yesterday.
  Sometimes people put letters in front of us that are not accurate and 
we don't check all of the facts. I presume that the other attorneys 
general that were presented with this letter are in the same position.
  Let me read from this letter: ``Senate Intelligence Committee 
Chairman John D. Rockefeller authored S. 2248 to solve a critical 
problem that arose when the Protect America Act was allowed to lapse on 
February 16, 2008.'' Hopefully, everybody in this body knows that 
information is inaccurate. Senator Rockefeller started to draft his 
legislation, and the Senate Intelligence Committee, long before 
February of 2008, the House Intelligence Committee and the House 
Judiciary Committee and Senate Judiciary Committee, long before that 
ever happened. That information is inaccurate. I don't hold the 
attorneys general personally responsible for that inaccuracy. But I 
will tell you, my own attorney general, a signatory on this letter, had 
been misinformed. That's unfortunate.
  I presume by the association, the overwhelming majority of these 
attorneys general are Republicans, but I don't think it was a partisan 
letter, per se, but it is shocking to me that an attorney general of a 
State in this country would say, ``whatever action is necessary to keep 
our citizens safe.'' There have been those down through history who, 
when we have been at risk, have said whatever action we take is 
justified, and the Constitution has suffered in that process.
  We have a responsibility to do both, not just one. The attorneys 
general in their letter also said this: ``Intelligence officials must 
obtain FISA warrants every time they attempt to monitor suspected 
terrorists in overseas countries.'' That is categorically false. I do 
not believe that any one of the attorneys general that signed this 
letter believed it to be false, but it is wrong. They are misinformed.
  We have an opportunity today to move this process forward to protect 
America and protect our Constitution. Senator Rockefeller, the chairman 
of the Senate Foreign Intelligence Committee, a committee from the 
Senate, passed a bipartisan bill. And I am so interested to hear all of 
the Members on the Republican side talk about how a Senate, bipartisan-
passed bill ought to pass this House.
  My, my, my. If Congressman DeLay were here now, he would turn over in 
his seat. His premise was the Senate doggone well ought to pass House 
bills and not ask any questions. That was his position. He had no 
intent to pass, no matter how bipartisan a Senate bill was, Tom DeLay 
had no use for talking to Senate Republicans about what he ought to 
pass.
  And by the way, if the President said pass it, if it was the 
Patients' Bill of Rights that he didn't want and it passed the Senate 
and the House, it didn't pass out of the conference committee because 
the President didn't want it. And by the way, on the prescription drug 
bill that a large number of your caucus was against, you passed anyway. 
It took you 3 hours to vote it, but you passed it. And so many of your 
Members came kicking and screaming to the final result and lament that 
vote this very day, and all of you on that side of the aisle know it. 
Not all of you, but a large number.
  Our responsibility is not to take a Senate bill or a House bill at 
face value. It is to exercise our best judgment to serve the American 
people as best we can.

                              {time}  1345

  I will close with this: Senator Rockefeller, the chairman of the 
committee, strong proponent of the bipartisan bill, said this on March 
11, 2008, just a few days ago:
  ``Today's House proposal reflects progress in bringing the two bills 
together, and it is a step in the right direction.'' He concluded his 
statement

[[Page 4408]]

by saying this: ``As soon as the House sends us this new bill, we will 
once again roll up our sleeves and get back to work on a final 
compromise that the House, the Senate, and the White House can 
support.''
  Ladies and gentlemen of this House, that's what the Founding Fathers 
had in mind when they created the House of Representatives and the 
United States Senate and they gave to the President of the United 
States a role in the legislative process. We have an opportunity today 
to serve the protection of our country, the interception of 
communications dangerous to our people, and to uphold our oath to 
preserve and protect the Constitution of the United States. Let us take 
that opportunity.
  Mr. VAN HOLLEN. Mr. Speaker, I rise in support of H.R. 3773. This 
bill reestablishes the role of the Court into foreign surveillance if 
and when a U.S. person becomes a target of such surveillance. H.R. 3773 
also authorizes the FISA court to review the ``minimization'' 
procedures used by intelligence agencies regarding the use of material 
that has been inadvertently intercepted. Moreover, this bill authorizes 
the FISA court to also review the ``targeting'' procedures that involve 
U.S. persons. Finally, the bill creates a commission to review the 
President's previous warrantless surveillance program and to report to 
Congress. It is important to note that H.R. 3773 contains no 
retroactive immunity for the telephone companies for their past 
accommodation to intercept the communications of U.S. persons without a 
court order.
  After the terrorist attack on September 11, 2001, our security 
agencies worked to improve their intelligence operations to ensure that 
such a plot could never again be executed on U.S. soil. However, this 
Administration, rather than assessing the need to make adjustments to 
surveillance authorities, embarked upon an unauthorized secret program 
authorized by nothing more than Executive fiat and clearly outside of 
the Foreign Intelligence Surveillance Act, FISA. The telecommunication 
industry was directed to comply with demands of the Administration with 
or without the requisite authority. Some telecommunications companies 
complied some did not.
  Despite repeated requests from Democratic Members of Congress for the 
Administration to assess the limitations of the existing FISA law and 
to request necessary changes, the Administration refused to do so. Only 
after James Risen in 2006 exposed the fact that the Administration had 
been engaged in a massive domestic spying operation did the 
Administration begin to address the need to reconcile the program with 
some semblance of statutory authority. To that end, last summer the 
Administration identified a change in technology that warranted a 
change to the law. The change in the telecommunications industry has 
placed nodes and other technological backbones on U.S. soil regardless 
of the flow of information. Consequently, many foreign-to-foreign 
communications pass through the U.S. without involving U.S. persons. 
This technological ``touch down'' under existing law would require a 
court order and needed to be changed.
  From that request for a technical change, the Administration, with 
the assistance of the Republicans in Congress, launched an initiative 
to virtually remove court orders for the surveillance of American 
persons. Moreover, the Administration launched an additional initiative 
to provide blanket retroactive immunity for all the phone companies and 
ISPs that intercepted communications in the absence of a legal 
authorization. This immunity was demanded without the disclosure of the 
acts that would be subject to such immunization. Currently, there are 
almost 40 lawsuits pending that have challenged the legality of the 
President's unauthorized surveillance program.
  All of these past cynical efforts to engage in an illicit 
surveillance program have now transformed into a campaign to engage in 
a widespread cover-up of past illegalities. The Republicans and the 
President cloak their surreptitious activity in a cloak of national 
security. However, the American people know better. We all want to stop 
terrorism. We all agree that foreign-to-foreign communications should 
be intercepted without needing a court order. We all agree that merely 
because such a communication is transported through a device that sits 
on U.S. soil, it should not impose any impediment to the surveillance 
of these communications. Where we disagree is in the need to carry on 
an illegal program, to defy any accountability and then come to 
Congress to seek legislation that is purely designed to conceal 
wrongdoing.
  The bill before us today accomplishes the following:
  Provides for surveillance of terrorist and other targets overseas who 
may be communicating with Americans.
  Requires the FISA court to approve targeting and minimization 
procedures--to ensure that Americans are not targeted and that their 
inadvertently intercepted communications are not disseminated. These 
procedures must be approved prior to surveillance beginning--except in 
an emergency, in which case the government may begin surveillance 
immediately, and the procedures must be approved by the court within 30 
days. (This may be extended if the court determines it needs more time 
to decide the matter.)
  Provides prospective liability protection for telecommunications 
companies that provide lawful assistance to the government.
  Requires a court order based on probable cause to conduct 
surveillance targeted at Americans, whether inside the United States or 
abroad.
  Requires an Inspector General report on the President's warrantless 
surveillance program.
  Prohibits ``reverse targeting'' of Americans.
  Explicitly establishes FISA Exclusivity--that FISA is the exclusive 
way to conduct foreign intelligence surveillance inside the U.S. Any 
other means requires an express statutory authorization.
  Sunsets these authorities on December 31, 2009 (same as the PATRIOT 
Act sunset).
  Moreover, this bill is as important for what it does not contain, 
i.e. retroactive immunity. This bill does provide telecom companies a 
way to present their defenses in secure proceedings in district court 
without the Administration using ``state secrets'' to block those 
defenses. Finally, this bill also establishes a bipartisan, National 
Commission--with subpoena power--to investigate and report to the 
American people on the Administration's warrantless surveillance 
activities, and to recommend procedures and protections for the future.
  We all want to prevent the acts of terrorism. However, some of us 
believe that we can protect our Nation without throwing away all of the 
rules that have been designed to protect the Constitutional rights of 
Americans. The scare tactics that have been used by this Administration 
to further cloak their illegal programs are reprehensible. What is more 
is that these tactics are not even marginally credible.
  The President's national security programs by and large have been a 
failure, his misadventure into Iraq on a quest for nonexistent weapons 
of mass destruction have led us on a path of a substantial loss of 
life, resources and moral standing in the world. Moreover, it has 
diverted our attention from those who did attack us on 9/11, Al-Qaeda 
and its Taliban allies who are regrouping and strengthening, according 
to declassified U.S. intelligence estimates, along the Afghanistan-
Pakistan border. In addition, the President's authorization to use 
torture on U.S. soil, as well as outsourcing it to foreign countries, 
by way of rendition, has compromised the security of our troops and 
diplomatic corps around the world. These practices have done much more 
to compromise our national security than to protect it. For these 
reasons, the President is not in a position to invoke national security 
on any grounds and certainly not to justify a warrantless domestic 
spying program and retroactive immunity for those who were complicit in 
this activity.
  Mr. BLUMENAUER. Mr. Speaker, over the past few months, we've had a 
lot of back and forth on this issue. For those who have been at the 
table, I want to express my appreciation for your hard work and the 
quality of your debate. I am proud of the fortitude displayed by the 
Speaker and the Intelligence Committee during this process: There will 
be no blanket immunity for telecom companies, there will be a two-year 
sunset, and there will be a commission to thoroughly investigate this 
administration's shameful wiretapping program.
   For the past seven years I have been highly critical of Republican 
wiretapping legislation. I have voted against past efforts to expand 
the ability of this administration to intrude in the lives and privacy 
of innocent citizens. Most recently, I supported the expiration of the 
Protect America Act because I am confident that the dedicated members 
of the intelligence community do not need to violate the rights of 
Americans in order to protect them.
   The bill before us will not solve every potential abuse of FISA, but 
it does provide stronger legal protections for Americans and introduces 
a measure of oversight. As this issue continues to play out into the 
future, it is my hope that our next steps will include even stronger 
protections for innocent Americans, clearer legal standards for FISA to 
judge surveillance procedures, and explicit requirements for the 
destruction of unnecessary data.
   Ms. MATSUI. Mr. Speaker, liberty and security are not mutually 
exclusive. Quite the opposite; they go hand in hand.

[[Page 4409]]

   The FISA Amendments Act recognizes this reality. This legislation is 
a balanced compromise that protects our country and ensures that our 
basic American freedoms remain intact.
   Our great country is founded on civil liberties, and secured by our 
intelligence community.
   Much of what keeps us safe is our commitment to upholding the values 
of freedom and liberty.
   All the security in the world is meaningless if we fail to protect 
the values that make our country worth defending in the first place.
   If we surrender the basic principles that make us who we are, we 
will forever change what it means to be American.
   Mr. Speaker, I know what can happen when we abandon our core 
American values. I was born in an internment camp, and my own family 
suffered the consequences when our country succumbed to the rhetoric of 
fear.
   That was a dark time in our Nation's history--one we cannot afford 
to repeat.
   That is why the legislation before us today is so important.
   It protects the liberties that we cherish, liberties that are the 
birthright of every American citizen.
   At the same time, it recognizes the need for the surveillance of our 
enemies.
   It gives our intelligence agencies the tools necessary to keep us 
safe, and provides strong legal clarity for the intelligence community.
   The compromise solution we have negotiated also allows 
telecommunications companies to defend themselves in a court of law.
   It takes Congress out of the equation and puts legal decisions back 
where they belong: in the court system.
   I am confident that this process will result in a fair solution to 
the civil cases that have been brought against these companies.
   That is why this balanced legislation deserves the support of every 
Member of this House.
   This bill will keep us safe, and it will keep us free.
   I urge passage of the FISA Amendments Act of 2008,
  Mr. MOORE of Kansas. Mr. Speaker, I rise today to express my cautious 
support for this House amendment to the Senate-approved version of H.R. 
3773, the FISA Amendments Act of 2008. I extend my gratitude for the 
hard work that Chairmen Conyers and Reyes have put into this 
legislation, as well as Speaker Pelosi and Majority Leader Hoyer for 
their efforts to negotiate with the Senate to work out the differences 
between the different approaches to update the Foreign Intelligence 
Surveillance Act [FISA] of 1978.
  We will never forget the awful terrorist attacks of September 11, 
2001, on our country. And we must keep in mind there are still those 
who wish to do us harm as we authorize essential surveillance 
authorities balanced by the civil liberty protections ensured by our 
Constitution. It is disappointing that the Bush Administration and our 
Republican colleagues have refused to participate in negotiations to 
date, but I am hopeful that with this new bill approved by the House, 
we can quickly work out our honest differences to provide our 
intelligence and law enforcement agencies with the tools required to 
monitor potential agents with terrorist intentions against the United 
States.
  This bill is a step in the right direction, but I have serious 
reservations with certain provisions that I urge Congress to promptly 
resolve in the coming weeks. I strongly believe in the merits of the 
Senate-approved FISA legislation drafted by Chairman Rockefeller and 
Ranking Member Bond, and I support a final bill that includes the 
following provisions: Require individualized warrants for surveillance 
of U.S. citizens living or traveling abroad; clarify no court order is 
required to conduct surveillance of foreign-to-foreign communications 
that are routed through the United States; provide enhanced oversight 
by Congress of surveillance laws and procedures; compel compliance by 
private sector partners; review by FISA Court of minimization 
procedures; and targeted immunity for carriers that allegedly 
participated in anti-terrorism surveillance programs.
  As a District Attorney for 12 years, I understand the importance of 
cooperation with private-sector partners in law enforcement matters. 
Without their cooperation in times of emergency, the community I was 
sworn to protect would be less safe and secure. The National Sheriffs' 
Association, the International Association of Chiefs of Police, the 
Fraternal Order of Police and the National Troopers Coalition have all 
expressed their support for the targeted immunity that the Rockefeller-
Bond FISA bill would provide. Key members of the 9/11 Commission have 
also voiced their support for the Rockefeller-Bond FISA bill. 9/11 
Commission Co-Chair and former Congressman Lee Hamilton wrote that: 
``To the extent that companies helped the government, they were acting 
out of a sense of patriotic duty and in the belief that their actions 
were legal. Dragging them through litigation would set a bad precedent. 
It would deter companies and private citizens from helping in future 
emergencies. . . .'' 9/11 Commissioner and former Senator Bob Kerrey 
affirmed that sentiment when he stated: ``We wrote in the 9/11 
Commission report that `unity of purpose and unity of effort are the 
way that we will defeat this enemy and make America safer for our 
children and our grandchildren.' We cannot hope to achieve such unity 
of effort if on the one hand we call upon private industry to aid us in 
this fight, and on the other allow them to be sued for their good-faith 
efforts to help.''
  I agree with the 21 state attorneys general who wrote in a December 
11, 2007, letter to Senate leadership: ``The provisions of 
[Rockefeller-Bond] are consistent with existing, long-standing law and 
policy. Congress has long provided legal immunity for carriers when, in 
reliance on government assurances of legality or otherwise in good 
faith, they cooperate with law enforcement and intelligence agencies . 
. . provisions of S. 2248 would . . . establish a thoughtful, multi-
step process involving independent review by the Attorney General and 
the courts that, only when completed, would lead to dismissal of the 
claims.''
  Congress must continue the hard work of negotiating a suitable 
compromise that equips our intelligence agents with the tools they need 
to protect our country, while ensuring that our civil liberties--which 
make us the greatest nation in the world--remain protected.
  Mr. DINGELL. Mr. Speaker, I voted against the original Patriot Act, I 
voted against the reauthorization of the Patriot Act in 2005, I voted 
against the President's Protect America Act that was signed into law 
last August, and I remain prepared to vote against any legislation that 
does not adequately protect our constitutionally guaranteed civil 
rights. I have some concerns about this legislation. I don't believe it 
is perfect. However, I am prepared to vote in support of it today as a 
sign that we in the House are prepared to negotiate a bipartisan 
solution that will end the deadlock on this issue.
  I note that the President has already rejected this overture, and 
once again insisted that he will veto any bill that does not grant 
blanket amnesty to the telecommunications companies that are alleged to 
have assisted the Bush Administration in conducting illegal warrantless 
wiretap programs. It is unfortunate that the President has taken this 
position, but I can assure him that there are those of us who will not 
be moved by his intransigence.
  I have repeatedly asked the Bush Administration to provide me with a 
briefing about the warrantless wiretap programs that took place without 
Congressional authorization so I could determine for myself whether 
amnesty is justified, and these requests have been repeatedly denied. 
After seven years of lies and obfuscation, I refuse to take the 
President at his word that amnesty for telecommunications companies is 
in the best interest of the American people, and I refuse to vote for 
amnesty until I am given the opportunity to review the evidence 
supporting it.
  Mr. NADLER. Mr. Speaker, I rise in strong support of H.R. 3773, the 
FISA Amendments Act. This carefully crafted legislation gives our 
intelligence agencies all the tools they need to protect our country, 
while protecting our fundamental civil liberties.
  Mr. Speaker, let us be clear about what this legislation does not do. 
It does not require individual warrants for the targeting of foreign 
terrorists located outside the United States. For three decades, that 
has been the law, and it will still be the law under this bill. There 
is no dispute about this.
  The bill starts with the recognition that the intelligence community 
needs to surveil all members of a terrorist group--once that group is 
identified. Any suggestion that it requires individualized warrants to 
intercept communications of terrorists overseas is wrong.
  The bill maintains the traditional requirement of a warrant when our 
intelligence agencies seek to conduct surveillance on Americans. And 
because some foreign surveillance may record conversations with 
Americans, the bill requires that, when the Government proposes to 
undertake surveillance of a foreign group or entity, it must first 
apply to the FISA court, except that, in an emergency, the surveillance 
can begin immediately, and the court can consider the surveillance 
procedures later.
  In both this bill and the Senate bill, the Government has to inform 
the court of the procedures it will use to ensure that it is targeting 
only foreigners overseas and how it will ``minimize'' domestic 
information it might inadvertently pick up. The only real difference is 
that

[[Page 4410]]

the Senate bill lets them listen first, then go to the court within 5 
days. This bill requires that they go to the FISA Court first. But in 
an emergency, we give them 7 days to listen before they go to the 
court. So will someone please tell me how this minor difference between 
the bills somehow gives rights to terrorists?
  There is one thing that this bill does not do, and this great body 
must not do--provide blanket, retroactive immunity to the 
telecommunication companies that assisted in the President's 
warrantless wiretapping program. Such a move would fly in the face of 
our notions of justice.
  Mr. Speaker, in the last few weeks, we have heard countless 
assertions from our colleagues on the other side that are false and 
misleading. They claim that we allowed the Protect America Act to 
expire--when it was the Republicans who blocked attempts to extend that 
legislation temporarily. And they continue to claim that retroactive 
immunity for the telecom companies is necessary for the security of the 
country. But they have failed to provide any evidence for that claim.
  The telecom companies aided the Administration's surveillance 
program. Some people--American citizens--believe their constitutional 
rights were violated, and brought suit against the government and the 
telecom companies. There are two narratives here. One is that the 
telecom companies patriotically aided the Administration in protecting 
Americans from terrorists. The other is that the telecom companies 
conspired with a lawless Administration to violate the Constitutional 
rights of Americans. Which of these narratives is correct is for a 
court to decide.
  It is not the role of Congress to decide legal cases between private 
parties. That is why we have courts. If the claims are not meritorious, 
the courts will throw them out. But if the claims do have merit, we 
have no right to dismiss them without even reviewing the evidence.
  We are told that the telecom companies should not be subject to 
lawsuits for doing their duty. But whether they were doing their duty, 
or abusing the rights of Americans, is precisely the issue. And that is 
a legal issue for the courts to decide.
  In any event, the existing law, in a wise balance of national 
security and constitutional rights that this bill does not change, 
already provides absolute immunity to the telecom companies if their 
help was requested, and if they were given a statement by the Attorney 
General, or various other government officials, stating that the 
requested help did not require a warrant or court order and would not 
break the law. They have immunity whether those statements were true or 
not. They can rely absolutely on the government's assertions.
  So why do they think they need retroactive immunity? Because of the 
Administration's sweeping assertion of the ``state secrets'' doctrine, 
which has prevented the companies from claiming their immunity.
  Title II of this bill will allow the telecoms to show the courts, in 
a secure setting, if they were obeying the law or if they weren't. It 
will allow the telecom companies to assert their immunity in court, and 
to present the relevant documents and evidence to the court in a secret 
session that protects any ``state secrets.'' The courts can then judge 
whether the telecom company obeyed the law--in which case it has 
complete immunity--or whether it did not. And, I remind you, that 
``following the law'' means simply obtaining a statement from the 
government that the company's help is needed, and that the requested 
help does not require a court order or violate the law. A company that 
assisted in spying on its customers without getting that simple 
assurance does not deserve immunity.
  Mr. Speaker, this bill gives our intelligence agencies what they say 
they need. But it also demands that their extraordinary powers be used 
properly, and that they follow our laws and our Constitution. This bill 
will help limit this Administration's disregard for the rule of law. It 
is a carefully crafted measure, and deserves the support of every 
member in this body.
  Mr. UDALL of New Mexico. Mr. Speaker, for the past several months, 
Congress has debated one of the most important issues that we face: the 
struggle to protect America while preserving the guaranteed liberties 
that make America great. During this vital discussion, some argued that 
Congress should stop deliberating and pass a reckless proposal that 
would unnecessarily sacrifice our constitutional rights. I disagreed. 
The legislation we discuss today, which was the product of deep 
deliberation and compromise, will keep America both safe and free. It 
is a credit to this House and to the American people.
  Today's legislation contains a number of carefully crafted provisions 
intended to protect the civil liberties of Americans at home and abroad 
while ensuring that the intelligence community can do its job. The 
wisest decision the House made in this bill was to grant 
telecommunications companies an opportunity to defend themselves in a 
confidential FISA court trial. This is in stark contrast to the 
administration's attempt to provide retroactive immunity for 
telecommunications companies that may have violated the law. The Bush 
administration claims that the telecommunications companies have 
evidence that would exonerate them but cannot be revealed in court 
because of confidentiality concerns. Our bill ensures that the American 
people will get their day in court and the companies will have the 
chance to defend their actions. This compromise is fair to the 
companies and to those whose rights they may have violated.
  I believe we can protect our Nation while upholding the values that 
make America a beacon of hope to people around the world. America is 
strong because we are a nation of freedom and a nation of laws. By 
refusing to grant blanket immunity to those who violated Americans' 
rights, the House reaffirms the rule of law and the importance of 
liberty. The Senate should follow our lead.
  Mr. KUCINICH. Mr. Speaker, I rise today in opposition to the FISA 
Amendments Act of 2008.
  This legislation is a commendable improvement over the irresponsible 
Protect America Act passed by this body in August. I am thankful that 
this new bill does not include retroactive immunity for 
telecommunication companies. However, the bill still falls short of 
ensuring the protection of the fourth amendment rights of U.S. 
citizens.
  Blanket warrants, institutionalized by the Protect America Act, will 
continue with the enactment of the FISA Amendments Act. There is a 
legitimate concern that surveillance of persons abroad can potentially 
infringe on the fourth amendment rights of U.S. citizens.
  These blanket wiretaps make it impossible to know whose calls are 
being intercepted by the National Security Agency, which increase the 
likelihood that the civil liberties of innocent U.S. citizens will be 
violated.
  Specifically, in Section 101(702)(i) appears to include a review 
process of ``Certifications and Procedures'' but these procedures are 
of a broad nature, make no connection to specific individuals, provide 
for no showing of wrongdoing and contain no explanation of how 
collection procedures will actually work. Consequently, the bill fails 
to uphold standard fourth amendment judicial involvement.
  Section 101(702)(g)(3) states that ``a certification made under this 
subsection is not required to identify the specific facilities, places, 
premises, or property at which the acquisition authorized under 
subsection (a) will be directed or conducted.''
  Our county's fourth amendment provides that targets of search and 
seizure should be stated with particularity. The particularity 
requirement limits the scope of the search by assuring U.S. citizens 
whose property is subject to a search is, according to the 
Congressional Research Service, ``being searched of the lawful 
authority of the executing officer and of the limits of his power to 
search. It follows, therefore, that the warrant itself must describe 
with particularity the items to be seized, or that such itemization 
must appear in documents incorporated by reference in the warrant and 
actually shown to the person whose property is to be searched.''
  Under current law, reviews conducted by the FISA court do not receive 
names of targets or organizations which already places some limitation 
on particularity. But this bill appears to allow the Government to go 
even further by applying for very broad, year-long authority to issue 
directives to companies to comply with Government searches as they see 
fit. This broad authority is reminiscent of the current 
administration's secret spying program.
  Furthermore, Section 101(702)(g)(2)(v) states that a requirement of 
certification for the targeting of certain persons outside of the 
United States is that ``a significant purpose of the acquisition is to 
obtain foreign intelligence information.'' FISA warrants already have a 
lower threshold of ``probable cause'' than criminal ``probable cause'' 
because the targets are assumed to be terrorist. The language in this 
section of the bill eliminates the need to find any wrongdoing 
whatsoever. Because, in the words of the Congressional Research 
Service, ``[t]he concept of ``probable cause'' is central to the 
meaning of the warrant clause'' of the fourth amendment, there are 
grave concerns about the erosion of our civil liberties.
  In sum total, allowing the administration to run a surveillance 
program of such a broad and undefined nature qualifies as 
``unreasonable'' under the fourth amendment. Although the purpose of 
the bill is to target foreigners abroad, by picking up calls coming 
into and out of the U.S., the program is not targeted at

[[Page 4411]]

individual terrorists and individualized court orders are not required. 
The bill ensures that all targeted international communications are not 
covered by the fourth amendment even if a U.S. citizen is involved. The 
rights guaranteed by the fourth amendment dictate that the Government 
must have cause to spy on U.S. citizens. But the language in this bill 
ensures that the Government can spy on U.S. citizens who participate in 
international communications if there is no cause. If we permit our 
constitutional rights to be watered down out of fear, we have given up 
our democracy. Congress must stand firm and defend the Constitution.
  Mr. BUTTERFIELD. Mr. Speaker, I rise today to speak on the FISA 
Amendments Act. The most controversial element of this legislation is 
the absence of retroactive immunity for telecommunications companies. 
As we continue this debate, I urge my colleagues to consider the unique 
circumstances telecommunications companies faced after the events of 9/
11. I believe that their cooperation with the government was undertaken 
in good faith and with an objectively reasonable belief that such 
assistance was lawful. I applaud this legislation, but urge careful 
consideration of the issue of retroactive immunity.
  Mr. UDALL of Colorado. Mr. Speaker, I support this measure for two 
reasons.
  First, I will support it because, as I have consistently said, I do 
think the basic law in this area--the Foreign Intelligence Surveillance 
Act, or FISA--needs to be updated to respond to changes in technology, 
which was the purpose of the current, temporary law.
  That is why, last August, I voted for a bill (H.R. 3356) to provide 
such an update--a bill that was supported by a majority of the House, 
but did not pass because it was considered under a procedure that 
required a two-thirds vote for passage, which did not occur because of 
the opposition of the Bush Administration, which was supported by all 
but 3 of our Republican colleagues. That is also why I voted for 
another bill to update FISA--H.R. 3773, the ``Responsible Electronic 
Surveillance That is Overseen, Reviewed, and Effective'' (or RESTORE) 
Act--which the House passed on November 15th of last year.
  Second, I will support it because I think it is distinctly better 
than the version the Senate passed--as an amendment to the House-passed 
RESTORE Act--on February 12th.
  It does include some good features of the Senate version, including 
provisions that for the first time will provide statutory requirement 
that surveillance of the communications of Americans overseas will be 
done pursuant to appropriate orders of the courts.
  But it differs from the Senate version in some important ways, 
particularly in the way it addresses the current lawsuits brought 
against several telecommunications companies by parties who claim that 
the companies acted wrongly by assisting with a surveillance program 
involving the massive interception of purely domestic communications.
  Those lawsuits have been consolidated and are pending in one court, 
but evidently have made little progress because of the Administration's 
argument, still awaiting court resolution, that the suits are barred 
because they involve state secrets. My understanding is that the 
defendant companies have argued that government's invocation of the 
state-secrets privilege has had the result of preventing them from 
defending themselves, although at least one company has stated in 
regulatory filings that the cases against it are without merit.
  President Bush has insisted that Congress throw these cases out of 
court by giving the companies retroactive immunity for whatever they 
might have done in connection with the surveillance program, even 
though the Administration and the companies themselves insist that 
those actions were lawful and that the plaintiffs' complaints against 
the companies have no merit.
  Regrettably, last month the Senate decided to comply with the 
President's demand on this point, and their version of this legislation 
would provide that retroactive immunity.
  I do not think that was the right decision. I agree with the Rocky 
Mountain News, which in a February 15th editorial said ``Letting this 
litigation proceed would not, as Bush [has] said . . . punish companies 
that want to `help America.' Businesses that want to help America need 
to be mindful of the Constitution--and so should the government.''
  That is why I think the approach taken in the measure before us is 
better. Unlike the Senate version, it would not short-circuit the court 
by preventing the cases from proceeding. Instead, it would allow the 
defendant companies to defend themselves by freeing them from the 
``state secret'' barrier erected by the Bush Administration.
  Under the measure before us, the defendants will be able to 
demonstrate to the court the evidence they say supports their arguments 
in a way that assures the continued security of that evidence and that 
avoids the public disclosure the Administration says would be adverse 
to the national interest. This is a process that has worked well in 
criminal cases, and while I am certainly not an expert on the matter, I 
think it can work when applied to these civil cases.
  Mr. Speaker, I think it is a matter of basic fairness to allow the 
companies now being sued, and those that may be sued in the future, to 
fully defend themselves and to try to show the court why, as the 
defendants in the current cases claim, they are already immune under 
existing law.
  That is what this measure does--and, in fact, it does more.
  Unlike the Senate version, it will protect the companies from 
lawsuits for compliance with valid authorizations under the temporary 
surveillance law (the ``Protect America Act'') passed last August for 
the period between the expiration of that law (but not the underlying 
authorizations) and the enactment of more lasting FISA reform 
legislation.
  I strongly approve of that aspect of the legislation because while I 
did not support its original enactment, I do regret the fact that the 
temporary law was allowed to lapse.
  I thought it should have remained in effect while we in Congress work 
to replace it with a longer-lasting statute. That was why earlier this 
year, I twice voted to extend it--first, by passage of a 15-day 
extension (H.R. 5104) and then by voting for a bill (H.R. 5349) that 
would have provided a further 21-day extension.
  Regrettably, that second extension did not occur. Its failure was 
because of the opposition of President Bush and the resulting fact that 
all our Republican colleagues here in the House, who voted against the 
extension and thus allowed the ``Protect America Act'' to lapse--a fact 
that has been conveniently ignored by many of those who have sponsored 
television commercials or otherwise complained about that lapse.
  In any event, today we have the opportunity to make progress toward 
the goal of updating the FISA law in a way that will enable our 
intelligence agencies to obtain information needed to protect the 
American people while safeguarding our rights under the Constitution. 
That is what this measure does, and that is why I will vote for it.
  For the information of our colleague, I am attaching the February 
15th editorial of the Rocky Mountain News that I mentioned earlier.

         [From the Rocky Mountain News--Friday, Feb. 15, 2008]

      No Immunity--Senate Veers Off Track in Its Surveillance Bill

       The Bush administration is in a tizzy because Congress will 
     take its Presidents Day recess and allow the temporary 
     ``terrorist surveillance'' act passed six months ago to 
     expire at midnight Saturday.
       Earlier this week, President Bush actually suggested that 
     al-Qaida operatives are watching the calendar, poised to plot 
     new attacks freely with Congress absent--and U.S. 
     intelligence officials will be largely powerless to stop 
     them.
       Don't insult the American public, Mr. President. You'll 
     still have the ability to wiretap suspected terrorists--and 
     the warrantless surveillance powers in the bill are valid 
     until August.
       Bush is riled because the House is leaving town without 
     adopting immunity provisions in the Senate surveillance bill. 
     The Senate version granted immunity from lawsuits--unwisely, 
     in our view--to telecommunications firms that cooperated with 
     the warrantless wiretaps on overseas calls.
       If immunity is in the final legislation--and Bush has said 
     he'd veto any bill that doesn't include it--it would kill the 
     40-plus lawsuits that have been filed against telecoms in 
     federal court. The litigation challenges the legality of the 
     program and the actions of telecoms that cooperated with the 
     government.
       If the lawsuits don't move forward, we may never learn if 
     some telecoms compromised the privacy of innocent Americans. 
     A grant of immunity could also set a dangerous precedent for 
     other businesses when federal agents or local cops who don't 
     have a court order demand private or confidential information 
     about their customers.
       (Colorado Sens. Wayne Allard and Ken Salazar both voted to 
     pass the Senate legislation and to oppose an amendment that 
     would have stripped the immunity provisions from the bill.)
       Look, we think the government should have greater leeway--
     and constitutionally, does have greater leeway--to monitor 
     international communications with al-Qaida than it does to 
     intercept domestic phone calls or e-mails.
       But we've largely had to take the administration's word 
     that the wiretap program didn't go beyond the narrow confines 
     under which it would be legal. Moreover, any program that 
     lets the government snoop without a judge's approval deserves 
     outside scrutiny to prevent abuses.

[[Page 4412]]

       In this instance, the lawsuits may reveal whether the 
     wiretaps were targeted or were more like fishing expeditions. 
     We may also learn how effectively the telecoms separated 
     international communications from domestic calls or e-mails.
       The government initially tried (and failed) to quash these 
     cases, claiming the program was so top secret that even 
     admitting that private telecoms participated would compromise 
     national security. Federal courts wouldn't buy that line. So 
     AT&T and other telecoms started claiming they were victims--
     Washington had persuaded them that the program was legal and 
     they had little choice but to assist in the fight against al-
     Qaida.
       Those claims may be true, but they seem to run counter to 
     the experience of Joe Nacchio, the former Qwest CEO who was 
     convicted on insider trading charges last year. Two years ago 
     it was revealed that Nacchio refused to comply with appeals 
     from the government to participate in the warrantless wiretap 
     program; he balked at turning over information about his 
     customers obtained under what Qwest considered suspect legal 
     circumstances.
       Court documents released in October revealed that Nacchio 
     first met with national security officials in February 2001--
     six months before the 9/11 attacks. ``Nacchio's account,'' 
     The Washington Post reported, ``suggests that the Bush 
     administration was seeking to enlist telecommunications firms 
     in programs without court oversight before the terrorist 
     attacks on New York and the Pentagon.''
       Letting this litigation proceed would not, as Bush said 
     Wednesday, punish companies that want to ``help America.'' 
     Businesses that want to help America need to be mindful of 
     the Constitution--and so should the government.

  Mr. ETHERIDGE. Mr. Speaker, I rise in support of H.R. 3773, the FISA 
Amendments Act of 2008. This bill will help protect our Nation's 
security from terrorist threats while also protecting the civil rights 
and freedoms of our citizens.
  On November 15, 2007, I voted in favor of the Responsible Electronic 
Surveillance That is Overseen, Reviewed, and Effective (RESTORE) Act 
that passed the United States House of Representatives by a vote of 227 
to 189. The FISA Amendments Act includes and enhances the provisions 
from the RESTORE Act that form a strong framework for how our 
intelligence agencies operate. This bill requires the FISA court to 
approve targeting and minimization procedures to ensure that Americans 
are not targeted and their communications are not disseminated. These 
procedures would have to be approved prior to any surveillance, with 
the exception of emergency cases that would allow the government to 
begin surveillance immediately, provided that they obtain approval from 
the FISA court within 30 days. Under the FISA Amendments Act, this 
requirement would extend to American citizens at home and as well as 
those traveling abroad. To further enhance accountability, this 
legislation would create a Congressional commission that would conduct 
hearings and investigation into the President's recent warrantless 
wiretapping program. This bill grants new authorities for conducting 
surveillance and collecting intelligence against terrorist 
organizations, while preserving the requirement that the government 
obtain a FISA court order, based on probable cause, when targeting 
Americans.
  While the FISA Amendments Act does not include retroactive immunity 
for telecommunications companies, it does ensure the ability of these 
companies to fully defend themselves if they are sued in a court of 
law. This bill provides these telecommunications companies a way to 
present their defenses in secure proceedings and gives them access to 
any documents relating to their case that the government could 
otherwise withhold as ``state secrets.''
  We owe our intelligence agencies clear rules and guidelines in order 
to perform their duties to the fullest, just as we owe it to every 
American to protect their rights and freedoms. I support the passage of 
H.R. 3773, The FISA Amendments Act of 2008, and I urge my colleagues to 
join me.
  Mr. SMITH of Texas. Mr. Speaker, I submit the following for the 
Record.

                          FISA Fix For Lawyers

       National Security: Wiretap law is supposed to protect the 
     U.S. by discovering and foiling terrorist operations. 
     Congressional Democrats seem to think its purpose is to line 
     the pockets of their trial lawyer supporters.
       House Democrats want to enact a terrorist surveillance law 
     that puts lawyers' fees before the safety of Americans. It's 
     a bill so skewed that its passage on a vote scheduled for 
     Thursday was questionable even to Democrats in the majority.
       At issue is the help given by telecom companies such as 
     AT&T and Verizon in monitoring the telephone and Internet 
     communications of suspected terrorists with contacts within 
     the U.S.
       Those heroic firms have saved hundreds, if not thousands, 
     of innocent lives with their cooperation in helping to obtain 
     information that allowed law enforcement to prevent post-9/ll 
     attacks.
       Congressional Democrats steadfastly refuse to protect those 
     firms from lawsuits backed by the American Civil Liberties 
     Union. Their message to those patriotic companies seems to 
     be:
       You helped President Bush succeed at something we wanted to 
     destroy him over, so now that we control Congress we're going 
     to give you your well-deserved comeuppance.
       The ACLU issued a statement expressing delight over the 
     House Democrats' new bill and was also pleased that the 
     Democrats would let the authorization to track terrorists 
     expire in only two years--as if there is any realistic chance 
     that the global war on terror could be behind us by then.
       A permanent Foreign Intelligence Surveillance Act could 
     always be revisited or repealed by Congress, yet Speaker 
     Nancy Pelosi's Democrats insist on a FISA sunset provision.
       The group said it is ``also heartened by the role retained 
     by the FISA court in overseeing the program,'' an allusion to 
     the fact that under the Democrats' bill, any and all domestic 
     surveillance for anti-terrorism purposes would have to first 
     get the approval of the special FISA courts--a state of 
     affairs that the president has emphatically stated places the 
     nation at risk.
       Moreover, it is a state of affairs under which the country 
     is vulnerable today, because the Democratic Congress let FISA 
     expire nearly a month ago.
       The Senate's FISA revision provides retroactive protection 
     from lawsuits to the telecom firms. If nothing is done, they 
     could conceivably be liable for hundreds of millions of 
     dollars--which would be some thanks for helping to protect 
     Americans from al-Qaida.
       House Democrats instead would give only ``prospective 
     liability protection for telecom companies that assist with 
     lawful surveillance'', according to a statement from House 
     Majority Leader Steny Hoyer.
       One of the bill's proposed procedures apparently would be 
     for the firms to tell the judge state secrets as part of 
     their defense while the ACLU lawyers and other plaintiff 
     attorneys are out of the room.
       But the ACLU's strategy in trying to destroy our 
     government's ability to monitor terrorist communications has 
     been to take their cases to federal courts in different 
     regions--in effect, judge shopping.
       Because the House Democrats' FISA bill would, as the ACLU 
     puts it, keep ``the courthouse door open,'' chances are that 
     they would be able to find judges only too happy to make the 
     telecom firms pay multimillion-dollar awards. The only just 
     solution is for Congress to grant those firms full 
     retroactive immunity.
       As Vice President Dick Cheney recently told the Heritage 
     Foundation, ``those who assist the government in tracking 
     terrorists should not be punished with lawsuits . . . it's 
     not even proper to confirm whether any given company provided 
     assistance.'' He added: ``In some situations, there is no 
     alternative to seeking assistance from the private sector.''
       The Center for Responsive Politics reports that trial 
     lawyers contributed some $85 million to Democratic candidates 
     in the 2006 election cycle. Obviously, Democrats believe 
     letting those legal parasites feed off patriotic companies 
     who have saved countless American lives is what is expected 
     of them in return.

  Mr. STARK. Mr. Speaker, I rise today to support the House's changes 
to the Foreign Intelligence Surveillance Act, FISA, Amendments Act. 
After 8 long years of watching Republicans kowtow to the President's 
tyrannical policies, I am only too happy to stand by a bill that will 
hold his administration accountable to some of their past actions and 
prevent future administrations from abusing our civil liberties.
  Our government was designed to be of the people, by the people, and 
for the people. But under President Bush, it has been a government of 
the executive branch, by the executive branch, and for the executive 
branch. The Administration's so-called ``security measures''--tapping 
phones, obtaining personal records, and spying without warrants--have 
undermined basic freedoms and diminished trust in government.
  It will take a great deal of time to clean up the mess left by this 
administration. We can take an important step forward today by giving 
telecommunications companies their day in court and establishing strict 
restrictions to prevent the government from spying whenever and on 
whomever it pleases. By voting for this bill, we make it clear that we 
won't let the President make a quick escape from Washington without 
bringing his transgressions to light. Rather than hide behind the 
threat of terrorism to justify illegal activities, as past Congresses 
have done, we will defend the constitutional rights of our 
constituents.
  The Bush administration has tried its hardest to convince us that our 
country's most basic tenets are unattainable. It believes that

[[Page 4413]]

in order to protect life, we must sacrifice liberty and the pursuit of 
happiness. That line of thought is wrong, President Bush is wrong, and 
I encourage my colleagues to support this bill and show that they are 
above the executive branch's scare tactics.
  Mr. PAUL. Mr. Speaker, I rise in opposition to this latest attempt to 
undermine our personal liberties and violate the Fourth Amendment of 
the Constitution. This bill will allow the federal government to engage 
in the bulk collection of American citizens' communications. In effect, 
it means that any American may have his electronic communications 
monitored without a search warrant.
  As such, the bill clearly violates the Fourth Amendment, which 
states:
  ``The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  The assurances in this bill that Americans will not have their 
communications monitored without warrant are unconvincing. The bill 
merely states that the government should do its best to avoid 
monitoring Americans if possible. We have seen how meaningless such 
qualified prohibitions have been as we recount the abuses over the past 
several years.
  Just today, we read in the news that the federal government has 
massively abused its ability to monitor us by improperly targeting 
Americans through the use of ``national security letters.'' Apparently 
some 60 percent of the more than 50,000 national security letters 
targeted Americans, rather than foreign terrorists, for surveillance.
  This is what happens when we begin down the slippery slope of giving 
up our constitutional rights for the promise of more security. When we 
come to accept that the government can spy on us without a court order 
we have come to accept tyranny.
  I urge my colleagues to reject this and all legislation that allows 
Americans to be spied on without a properly issued warrant.
  Ms. McCOLLUM of Minnesota. Mr. Speaker, I rise in strong support of 
the FISA Amendments Act, H.R. 3773. This bill updates the Foreign 
Intelligence Surveillance Act, FISA, by providing the Intelligence 
Community the ability to conduct surveillance of foreign targets 
outside the U.S. while protecting the civil liberties of Americans, and 
restoring constitutional checks and balances.
  As Americans, our Constitution provides us with freedoms and 
liberties that, as a Member of Congress, I swore an oath to uphold and 
defend. Since September 11, 2001, President Bush has sought to expand 
executive power with the claim of securing our Nation, but all too 
often this promise of security has been at the expense of 
constitutionally protected civil liberties. The American people and the 
world have witnessed a list of serious abuses sanctioned by the Bush 
administration. There have been detainees tortured, the suspension of 
the writ of habeas corpus, and wiretapping of phone calls and reading 
of the private emails of our citizens without a warrant. These of 
course are only the abuses we know of in large part because we live in 
a society with a free press that can expose these abuses.
  To my dismay, Congress failed the American people last year when it 
passed the so-called Protect America Act, S. 1927, which updated FISA 
but allowed for the wiretapping of American citizens without a court 
issued warrant. The 1978 Foreign Intelligence Surveillance Act required 
the Government to obtain a warrant before eavesdropping on Americans. 
Judicial discretion was incorporated into this security procedure to 
ensure the rights of Americans were not violated. This system worked 
and, with minor adjustments, could be made to ensure national security 
and the protection of our civil liberties. Unfortunately, this White 
House and a majority in Congress sacrificed our civil liberties while 
adding no additional security benefits.
  In order to facilitate its spying on American citizens, the Bush 
administration elicited the assistance of some of America's largest 
telecommunications companies. There is a call by the administration and 
some Members of Congress to allow retroactive immunity for companies 
that broke the law by acting as co-conspirators in domestic spying on 
our citizens. I am strongly opposed to any retroactive immunity for 
those corporate conspirators who participated in violating Americans' 
civil liberties.
  Not all telecommunications companies complied with the 
administration's request to spy on Americans. Qwest, which serves 
Minnesota, refused to participate because the company felt 
uncomfortable with the legality of the request. I applaud Qwest's 
ethical and appropriate action on behalf of their customers and the 
rule of law.
  Finally, I want to thank the leadership, Chairman Conyers, and 
Chairman Reyes for their work in bringing this piece of legislation to 
the floor. I urge my colleagues to support the FISA Amendments Act 
because with it Congress can safeguard both the security of our nation 
and civil liberties.
  Mr. FLAKE. Mr. Speaker, I voted against H.R. 3773, the FISA 
Amendments Act of 2008, which was approved by the House of 
Representatives on March 14, 2008. I believe that this bill was a good 
compromise between the RESTORE Act approved by the House on November 
15, 2007 and the version of the legislation approved by the Senate on 
February 12, 2008. However, I opposed the version of H.R. 3773 
considered in March, because it failed to include immunity for the 
telecommunications companies that cooperated with the administration's 
request to assist in intelligence collection.
  I disagree with the President's decision to bypass congressional 
authority in authorizing such surveillance. However, I believe that the 
telecommunications companies were put in a difficult position and acted 
in a good-faith interest of national security when they cooperated with 
the administration's request. If Congress fails to grant them immunity, 
the consequences would be far-reaching.
  Without immunity, the pending lawsuits against the telecom companies 
will carry on for years and saddle the telecoms with millions of 
dollars in legal fees--fees that will, in turn, be passed onto 
consumers.
  There will be scenarios in the future when cooperation between the 
private sector and the Federal Government will be necessary. These 
situations will likely be met with distrust and extreme hesitance on 
the part of private companies because we failed to come to their 
defense in this matter. This could be detrimental to U.S. security.
  Instead of immunity, the FISA Amendments Act would allow the telecoms 
to defend themselves in court by lifting current restrictions and 
allowing classified information to be introduced as a part of their 
defense. This may or may not be sufficient to prove the innocence of 
the telecoms. but the introduction of this information would set a 
dangerous precedent. Over the objections of the President, highly 
classified information would be handed over to judges and lawyers who 
are unlikely to possess the appropriate and necessary security 
clearances. This would almost certainly make the introduction of such 
classified evidence in future proceedings easier, and could severely 
compromise our ability to collect and conduct future intelligence 
activities.
  The initial House-approved FISA reform legislation, the RESTORE Act, 
did not contain any immunity provisions. I supported it with the 
expectation that we would consider immunity during a conference with 
the Senate. We voted instead on the FISA Amendments Act, which I 
believe is a good bill that represents a careful compromise. Immunity 
is critical and, because H.R. 3773 has no immunity provisions, I voted 
against its passage.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 1041, the previous question is ordered.
  The question is on the motion offered by the gentleman from Michigan 
(Mr. Conyers).
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The vote was taken by electronic device, and there were--yeas 213, 
nays 197, answered ``present'' 1, not voting 20, as follows:

                             [Roll No. 145]

                               YEAS--213

     Abercrombie
     Ackerman
     Allen
     Altmire
     Andrews
     Arcuri
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Boyd (FL)
     Boyda (KS)
     Brady (PA)
     Braley (IA)
     Brown, Corrine
     Butterfield
     Capps
     Cardoza
     Carnahan
     Carson
     Castor
     Chandler
     Clarke
     Clay
     Cleaver
     Clyburn
     Cohen
     Conyers
     Costa
     Costello
     Courtney
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Donnelly
     Doyle
     Edwards
     Ellison
     Ellsworth
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Foster
     Frank (MA)
     Giffords
     Gillibrand
     Gonzalez
     Gordon
     Green, Al
     Grijalva
     Gutierrez
     Hall (NY)
     Hare
     Harman
     Hastings (FL)
     Herseth Sandlin
     Higgins
     Hill
     Hinojosa
     Hirono
     Hodes

[[Page 4414]]


     Holt
     Honda
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (GA)
     Johnson, E. B.
     Jones (OH)
     Kagen
     Kanjorski
     Kaptur
     Kennedy
     Kildee
     Kilpatrick
     Kind
     Klein (FL)
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Loebsack
     Lofgren, Zoe
     Lowey
     Lynch
     Mahoney (FL)
     Maloney (NY)
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (NY)
     McCollum (MN)
     McGovern
     McIntyre
     McNerney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Miller (NC)
     Miller, George
     Mitchell
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murphy (CT)
     Murphy, Patrick
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Perlmutter
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Reyes
     Richardson
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Ryan (OH)
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schwartz
     Scott (GA)
     Scott (VA)
     Serrano
     Sestak
     Shea-Porter
     Sherman
     Sires
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Space
     Spratt
     Stark
     Stupak
     Sutton
     Tanner
     Tauscher
     Taylor
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Tsongas
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Walz (MN)
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Wilson (OH)
     Wu
     Wynn
     Yarmuth

                               NAYS--197

     Aderholt
     Akin
     Alexander
     Bachmann
     Bachus
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehner
     Bonner
     Bono Mack
     Boozman
     Boren
     Brady (TX)
     Broun (GA)
     Brown (SC)
     Buchanan
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Capuano
     Carney
     Carter
     Castle
     Chabot
     Coble
     Cole (OK)
     Conaway
     Cooper
     Crenshaw
     Cubin
     Culberson
     Davis (KY)
     Davis, David
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     English (PA)
     Fallin
     Feeney
     Ferguson
     Filner
     Flake
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gilchrest
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Hall (TX)
     Hastings (WA)
     Hayes
     Heller
     Hensarling
     Herger
     Hinchey
     Hobson
     Hoekstra
     Holden
     Hulshof
     Inglis (SC)
     Issa
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Jordan
     Keller
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline (MN)
     Knollenberg
     Kucinich
     Kuhl (NY)
     Lamborn
     Lampson
     Latham
     LaTourette
     Latta
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCarthy (CA)
     McCaul (TX)
     McCotter
     McCrery
     McDermott
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy, Tim
     Myrick
     Neugebauer
     Paul
     Pearce
     Pence
     Petri
     Pitts
     Platts
     Poe
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Roskam
     Royce
     Ryan (WI)
     Sali
     Saxton
     Schmidt
     Sensenbrenner
     Sessions
     Shadegg
     Shays
     Shimkus
     Shuler
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Terry
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walberg
     Walden (OR)
     Wamp
     Welch (VT)
     Weldon (FL)
     Westmoreland
     Whitfield (KY)
     Wilson (NM)
     Wilson (SC)
     Wittman (VA)
     Wolf
     Young (FL)

                        ANSWERED ``PRESENT''--1

       
     Davis, Lincoln
       

                             NOT VOTING--20

     Boustany
     Brown-Waite, Ginny
     Cramer
     Everett
     Green, Gene
     Hooley
     Hunter
     LaHood
     Musgrave
     Nunes
     Oberstar
     Peterson (PA)
     Pickering
     Rangel
     Rush
     Tancredo
     Walsh (NY)
     Weller
     Woolsey
     Young (AK)

                              {time}  1408

  Messrs. KINGSTON, EHLERS, and McDERMOTT changed their vote from 
``yea'' to ``nay.''
  So the motion was agreed to.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________