Mr. CONYERS. Mr. Speaker, I yield myself as much time as I may consume.
Members of the House, the RESTORE Act dealing with FISA addresses the needs of the intelligence community for flexibility in dealing with modern communications networks.
It received the most careful scrutiny and consideration by this Committee on the Judiciary, as well as by the Intelligence Committee, chaired by Chairman Reyes, to ensure that it meets every concern our intelligence agencies have raised, every single one of them, and does so consistent with the rules of law, our Constitution, and our values.
Let's begin this discussion this evening by clearing up a few things that the bill will not do. The RESTORE Act will never require our intelligence agencies to stop listening to the bad guys. Never. Special emergency provisions allow us to listen first and get the warrant after the fact, if it's needed. No one will ever have to stop listening to a terrorist plotting an attack. I hope I don't hear that raised on the floor this evening.
The RESTORE Act will not make our intelligence agencies have to get thousands of warrants for terrorists outside the country. It will not do that. Instead, a basket authorization will permit surveillance of an entire foreign terrorist organization. This is the most effective way to target Osama bin Laden, al Qaeda, and other threats to our country and our citizens.
The RESTORE Act does not give the government free rein to listen to Americans. As has always been the case under FISA, this bill requires that the government get a warrant to target an American; any American. We have also a manager's amendment, which continues to promote the goals of intelligence flexibility with appropriate oversight, while safeguarding our security and our liberty. It makes clear that the protections of the act will not inhibit gathering intelligence against present dangers,
such as Osama bin Laden, or threats to our troops in the field.
It does provide guidelines to make it easier to determine when the significant purpose of the surveillance act is to acquire information on a United States person and a FISA warrant is needed. It provides important safeguards on dissemination of information about individual Americans when it's acquired under the RESTORE Act's more flexible structure. Specifically, an SES-level manager will review such dissemination on a particularized basis.
Importantly, the RESTORE Act has no retroactive immunity for telecommunications carriers who may have assisted the government in conducting unlawful surveillance on Americans. I am sorry to report to you that the other body has a measure that does give that retroactive immunity. The RESTORE Act now on the floor has no retroactive immunity for telecommunications carriers who may have assisted the government in unlawful surveillance on Americans.
Until we receive the information, the data, the letters that we have requested to know what they have done, information we have been waiting for more than 10 months for, we can't even begin to responsibly consider such a request. So as of now, it's out. No retroactive immunity.
The legislation that we have before us now is a much-needed start to restoring our system of checks and balances, preserving our liberty, and ensuring that our government has the tools they legitimately need to combat terrorism. We got pressed up against the wall in August. It's not going to happen again. There's a 6-month run on the present measure before us. Before we get pushed up against the holidays, we are saying, Let's do it now.
We have had a tremendous working relationship with the chairman of the Intelligence Committee, Silvestre Reyes, and his staff and my staff. Majority and minority have been working [Page: H14046]
closely together to bring to you a commonsense and balanced piece of legislation that does what we set out to do, and that is to preserve our liberties and make sure we have effective security. We want our intelligence agencies strong, but we want to bring the FISA
Court back into the picture, and we do in the measure before us.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, there is a time and place for politics and partisanship. But there are in fact important issues that transcend politics. The security of our Nation outweighs politics, especially when our country is at war.
One of the finest moments of bipartisanship in Washington came after one of the darkest days in our history. On the evening of September 11, 2001, Members of Congress stood shoulder to shoulder on the steps of the Capitol as a symbol of strength and unity in response to the terrorist attacks. In that moment, we stood together, not as Republicans or Democrats, but as Americans resolved to protect our Nation. However, as we stand here today, that same spirit of bipartisanship we shared on 9/11
no longer exists.
We began in August to address a very specific and very urgent issue facing our intelligence community. We learned from the Director of National Intelligence, Admiral McConnell, that the Foreign Intelligence Surveillance Act, or FISA, was outdated for today's technology. But the bill we are considering today does not modernize FISA; it weakens it. Why, after 30 years of lawful foreign intelligence collection, does the Democratic majority suddenly object to a law that their party originally enacted
in 1978? Why make it harder to gather intelligence on terrorists after 9/11 than before?
Now, after only a few hours' notice, we are considering the RESTORE Act, which actually restores little. Rather, it undermines our national security and increases the risk of a future terrorist attack on our country. It prevents our intelligence community from gathering critical intelligence information. It ignores the need for legal protection for communications companies that assist law enforcement and intelligence officials. We are at war with terrorists who spend every day plotting attacks
against us. Our intelligence community needs to detect and disrupt these plots. To deny this ability could have catastrophic consequences.
Admiral McConnell testified in great detail before the Judiciary Committee about the specific needs of the intelligence community and the need to reform FISA. Admiral McConnell's recommendations are ignored, unfortunately, in the RESTORE Act. Instead, it requires the intelligence community to obtain FISA court orders for all communications of persons reasonably believed to be outside the United States. FISA has never applied to persons outside of the United States.
Under the RESTORE Act, FISA court orders will be required for the first time ever for thousands of overseas terrorist targets. Also, section 18 of the [Page: H14047]
manager's amendment is bluntly titled: ``No Rights Under the RESTORE Act for Undocumented Aliens.'' That is what it says. But the practical effect of the RESTORE Act will be to allow unregulated, warrantless wiretapping of illegal immigrants in the United States. Is this really what the Democratic majority
Finally, the RESTORE Act omits any liability protection for telephone companies and other carriers that assisted the government after September 11, 2001. These companies deserve our thanks, not a flurry of harassing lawsuits. Communications technology has changed since 1978. We can no longer gather foreign intelligence without the assistance of private communications companies. Extending commonsense liability protection to communication providers who acted in good faith to protect the United
States from another terrorist attack is completely appropriate. If we fail to provide this protection, we risk losing the future cooperation of communication providers in gathering foreign intelligence.
Democrats made a promise to the American people in 2006 that Members of Congress would put aside politics and work together to find bipartisan solutions to issues facing the American people. That promise has apparently been broken.
Mr. Speaker, I reserve the balance of my time.
Mr. REYES. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise once again in support of H.R. 3773, the RESTORE Act. I would also like the RECORD to reflect that Congressman BARON HILL intended to be listed as a cosponsor of H.R. 3773, and we are certainly grateful for his support.
In early September, at the direction of Speaker Pelosi, the Intelligence Committee and the House Judiciary Committee took up the call to improve the Protect America Act, or PAA. Passed in August, the PAA modified FISA and gave sweeping and unprecedented surveillance powers to the executive branch, while requiring minimal oversight and without providing a meaningful judicial check on the President's use of the new powers.
While we were charged with undoing the excesses of PAA, we also have the mandate to provide our intelligence professionals the legal authorities required to protect the country from our enemies. Six years after the tragic attacks of 9/11, Osama bin Laden remains at large and America continues to face threats from al Qaeda and other terrorist organizations. The war in Iraq continues to act as a recruitment tool for all our enemies.
Mindful of these threats, we drafted the RESTORE Act as a bill that we can all support and be proud of. The RESTORE Act arms our intelligence community with powerful new authorities to conduct electronic surveillance of targets outside the United States while maintaining our fundamental liberties. First, it exempts truly foreign-to-foreign communications from any judicial review, even when the communication passes through the United States or the surveillance device is still actually located
in the United States. Second, it authorizes the acquisition of foreign intelligence information for all matters of national defense, including information relating to terrorism, espionage, sabotage, and other threats to the national security of our country.
Third, the act clarifies that nothing in the act or the amendments to the act shall be construed to prohibit lawful surveillance necessary to prevent Osama bin Laden, al Qaeda, or any other terrorist organization from attacking the United States or our allies. But these powerful authorities are subject to the checks and the balances required by our Constitution.
The RESTORE Act puts the FISA Court back in business where the rights of Americans are at stake. The RESTORE Act tightens overbroad language in the PAA that authorized physical searches of Americans' homes and offices without a warrant. The RESTORE Act restores meaningful, robust, and continuous oversight by the judicial and legislative branches to ensure that the powerful intelligence-gathering tools authorized by the RESTORE Act are being used effectively and within the boundaries set by our
In sum, the RESTORE Act provides tools to keep the Nation safe and upholds our constitutional liberties. This debate has gone on long enough, I believe, Mr. Speaker. It has been unnecessarily prolonged bipartisan maneuvering from some in this House. I am sure that we will see more of that partisan gamesmanship tonight. But I urge my colleagues to reject partisan politics in favor of sound policy and support this critically important bill.
I urge all my colleagues to vote ``yes'' for the RESTORE Act.
With that, I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman from Virginia (Mr. Forbes), the ranking member of the Crime Subcommittee of the Judiciary Committee.
Mr. CONYERS. Mr. Speaker, I am pleased now to recognize a very effective member of our committee, Mr. Schiff of California, as well as the gentleman Mr. Flake of Arizona, and I would yield them 2 minutes.
Mr. SCHIFF. I thank the chairman for yielding and for his leadership.
Over the last 2 years, I have worked with my Republican colleague JEFF FLAKE of Arizona to ensure that the government has all the tools necessary to pursue al Qaeda and all the other terrorists who would seek to harm our country while ensuring that the requirement of court approval of surveillance of Americans on American soil is met.
I am pleased that the committee has included many of the items we proposed, including reiterating FISA's exclusivity, providing robust oversight reporting, requiring FISA Court involvement when U.S. persons are involved, and clarifying that the interception of foreign-to-foreign communications does not require a court order.
To address a concern raised by Mr. Flake, our language makes clear that a court order would not be required for electronic surveillance directed at the acquisition of communications between persons that are not known to be U.S. persons and are reasonably believed to be located outside the U.S., without respect to whether the communication passes through the U.S. or the surveillance device is located in the U.S.
We have also placed additional safeguards to ensure this section is not abused and used to acquire communications of U.S. persons.
I am pleased to yield the balance of my time to my colleague.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gohmert), the deputy ranking member of the Crime Subcommittee of the Judiciary Committee.
Mr. GOHMERT. Mr. Speaker, to be accused of partisan maneuvering is pretty insulting. Some of us are not concerned about partisan maneuvering; we are concerned about the security of the United States. That is why I am here right now, not because of partisan maneuvering.
Do you want to talk partisan maneuvering? How about when I go out to get a copy of the most current bill and we have got a bait and switch. This isn't even the most current bill out there that we can get ahold of to come in and talk about. But I know the provision, and I appreciate my fine chairman talking about we have taken care of emergency situations, and then we had two Members just talk about emergency situations.
If you take these provisions, and hopefully the part I am talking about is the latest, that is the way I understand from what you are talking about, it says specifically in here, yeah, there is an emergency provision, but in order to get it, the Director of National Intelligence, Admiral McConnell, who was the National Security Advisor for President Clinton, he and the Attorney General have to jointly be able to swear that the targets of their acquisition are not reasonably believed to be located
outside of the United States and they are not reasonably believed to be United States persons.
You take that with their testimony, the testimony was I cannot ever swear that. The way you do this intelligence is you go after a foreign target, and I can never testify, he said, as to who the person will be that they call. I can never testify that I reasonably believe they will be outside the United States when they call or that they will not be a United States person.
So, if he comes in and does this after he has testified ``I cannot say I reasonably believe that they will not call somebody in the U.S., when I don't know who they will call,'' then we got problems. This does not protect the problem. We need to vote ``no.''
Mr. BOSWELL. I thank the gentleman and I support the bill.
I submit for the Record an op-ed by our friend and former colleague, the Honorable Lee Hamilton, cochair of the 9/11 Commission, regarding the issue of retroactive immunity. The op-ed fully expresses my concerns regarding this issue, and I wish for all Members to have the benefit of reviewing it.
Mr. REYES. Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Eshoo), who serves as the chairwoman of our Subcommittee on Intelligence Community Management.
Ms. ESHOO. I thank the distinguished chairman of the House Intelligence Committee.
Mr. Speaker, this legislation very importantly covers espionage, terrorism, sabotage and all threats to our national security. That sentence alone frames what this issue is about and the seriousness of it.
The other part of it that fills out the frame is that it restores the FISA Court. It restores the FISA Court to its prominence, and, by doing so, it restores a legal framework for surveillance that must be conducted to protect our national security.
This legislation provides every meaningful tool of the legislation that was passed last August. But, unlike that bill, it protects the rights of the American people.
The legislation is true to its name. It restores the role for all three branches of our government by reestablishing the checks and the balances that have protected our security, as well as our rights as Americans. This is what the American people not only expect, it is what they have become accustomed to, and they like it.
This legal framework for the NSA surveillance is absolutely essential. When no Americans are involved, no judicial oversight is required. When an American communication may be intercepted, the court must approve the procedures for handling it. Finally, when an American is targeted, the court must be asked for an order.
The American people know all too well that this administration is now considered the most secretive in the history of our country. It has operated with unchecked power and without judicial or congressional oversight. We now know that the President went around the courts to conduct a program of warrantless surveillance of calls to Americans. We now know that the FBI abused the authorities granted under the PATRIOT Act improperly using National Security Letters to American businesses, including
medical, financial and library records, instead of seeking a warrant from the court. In hundreds of signing statements, the President has quietly claimed he had the authority to set aside statutes passed by Congress.
Mr. Speaker, I think enough is enough. This bill says that the executive is not the imperial branch of government. It restores the fundamental balance struck by our Framers, to secure our Nation and to protect the rights of all Americans. Preserving that balance makes our Nation stronger, and this is at the core of the legislation before us. I urge my colleagues to support it.
Mr. SMITH of Texas. Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. Lungren) who is the senior member of both the Judiciary and Homeland Security Committees.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I rise in opposition to this bill, and I am sorry that I have to do that. I respect the gentleman from Michigan (Mr. Conyers). We have worked on many things together. I believe he is a prime time player, but I disagree with his statement that this bill is ready for prime time. [Page: H14049]
To just give one example, if you look at section 6 of this bill, section 6 of the bill differs with the way we handle minimization under current law by saying that if there is evidence of a crime, it cannot be disseminated to a criminal justice entity. Now, maybe there is a reason for that, but that has never been discussed whatsoever.
Secondly, I would say that in the two 1-hour Special Orders I gave, I raised the problem that exists in the underlying bill as we now see it, which is in the very beginning of the bill, and it deals with a section entitled ``treatment of inadvertent interceptions.''
It deals with a situation where the intelligence community believes in good faith that they are dealing with foreign-to-foreign, but inadvertently they capture communication that deals with foreign-to-domestic. And what we say here is that you cannot use that information for any purpose, any purpose. It cannot be disclosed. It cannot be disseminated. It cannot be used for any purpose or retained for longer than 7 days, unless what? A court order is obtained or unless the Attorney General determines
that the information indicates a threat of death or serious bodily harm to any person, that the information indicates that.
I have stood on this floor on several occasions and said what that means is if we have a conversation or a communication involving Osama bin Laden, and everybody recognizes that might be the case, because in the manager's amendment we talk about Osama bin Laden, if in fact that occurs and the communication deals with someone within the United States, and he doesn't in that communication have information indicating a threat of death or serious bodily harm to any person, but indicates where he
happens to be, the exact cave where he is at, we cannot operate on that in a timely fashion.
I would challenge any Member on the other side of the aisle to read the language in the underlying merged text, page 3, entitled ``Treatment of Inadvertent Interceptions,'' and tell me that I am wrong. This is, whether it is by mistake or you intended it to happen, giving greater protection to a terrorist around the world than you give to an American citizen charged with a crime.
I have said it before and I will say it again: I don't believe you intended this, but it is in the bill. As a matter of fact, the gentleman from New York, the chairman of the Constitutional Rights Subcommittee, came to me after we had an exchange on the floor on the issue and said, ``You are right. We goofed up. We should get rid of it.'' Yet we are here with it on the floor. For that reason alone, we ought to defeat the bill.
Mr. CONYERS. Mr. Speaker, I am stunned by my friend from California's comments, but I yield now 2 minutes to the gentleman from New York (Mr. Nadler), the chairman of the Constitution Subcommittee in Judiciary.
Mr. NADLER. I thank the gentleman.
Mr. Speaker, this legislation restores the proper role of the Foreign Intelligence Surveillance Court in the maintenance of our national security infrastructure. Let's get the terms of this debate clear before we begin. Anyone who can read will see that this bill does not inhibit the government's ability to spy on terrorists or on suspected terrorists or to act swiftly and effectively on the information we gather.
The American people expect that their government will keep us all safe and free. This bill does that.
The bill does not require individual warrants of foreign terrorists located outside the United States. That has been the law for three decades; that is still the law.
The bill does provide reasonable FISA Court oversight to ensure that when our government starts spying on Americans, it does so lawfully by getting a warrant from the FISA Court. It will put an end to this administration's well-worn ``trust me'' routine.
I trust our intelligence community to gather solid intelligence on threats to our Nation. But protecting constitutional rights is not their prime job. That is why we have courts.
This bill provides for Congress to receive independent reports on how the act is working and what our government is doing. This administration's penchant for secrecy and aversion to accountability will come to an end, at least in this area.
Let me say a word for demands for retroactive immunity for the telecom companies. As many of our colleagues have pointed out, any such discussion is premature. We do not even know what we are being asked to immunize or whose rights would be compromised if we did so.
More importantly, Congress should not decide legal cases between private parties; that's for the 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 wipe them without even reviewing the evidence. How dare we have the presumption to decide the rights of allegedly injured parties in the blind.
Mr. Speaker, this bill meets every single principle set forth by the Congressional Progressive Caucus. As one of the co-chairs of the caucus' FISA Task Force, I am pleased to support this important bill. It is true to our Constitution. It is true to our values. It is true to our safety. It will keep us safe and free.
This bill gives our intelligence agencies the tools they have told us they need to make us safe, and gives the FISA Court the tools it needs to ensure that the extraordinary powers we are giving to the intelligence community are used correctly and consistently with our laws and our Constitution.
It's called the separation of powers, with each branch of the government doing what it is supposed to do and acting as a check on the others. FISA exists to ensure that the balance between the needs of intelligence gathering and the protection of the rights of all Americans are balanced.
Most importantly, it restores the role of FISA as the exclusive legal basis for foreign intelligence surveillance. No more making it up as you go along.
Did the telecoms break the law? Were they acting appropriately? Were the rights of innocent Americans violated? We don't know.
How dare we have the presumption to decide the rights of allegedly injured parties in the blind?