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Providing for Consideration of H.R. 5825, Electronic Surveillance Modernization Act

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Location: Washington, DC


PROVIDING FOR CONSIDERATION OF H.R. 5825, ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (House of Representatives - September 28, 2006)

BREAK IN TRANSCRIPT

Mr. PUTNAM. Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Florida (Mr. Hastings), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

(Mr. PUTNAM asked and was given permission to revise and extend his remarks.)

Mr. PUTNAM. Mr. Speaker, I am pleased to bring to this floor House Resolution 1052. The resolution is a rule that provides for consideration of H.R. 5825, the Electronic Surveillance Modernization Act. H.R. 5825 relates to the manner in which the Federal Government collects oral, wire, and electronic communications for foreign intelligence purposes.

In order to safeguard fourth amendment protections, Congress has created procedures to allow limited law enforcement access to private communications and communication records. Specifically, Congress enacted title III of the Omnibus Crime Control and Safe Streets Act of 1968 that outlines what is and what is not permissible with regard to wiretapping and electronic eavesdropping.

Title III of the Crime Control Act authorizes the use of electronic surveillance for specific crimes. While Congress did not cover national security cases in the Crime Control Act, it did include a disclaimer that the wiretap laws did not affect the President's constitutional duty to protect our national security.

In 1972, the U.S. Supreme Court specifically invited Congress to establish similar standards for domestic intelligence that were established for criminal investigations.

Congress enacted the Foreign Intelligence Surveillance Act of 1978, FISA, to prescribe procedures for foreign intelligence that is collected domestically. FISA authorized the Federal Government to collect intelligence within the United States on foreign powers and agents of foreign powers. It established a special court to review and authorize or deny wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering in domestic surveillance cases. FISA was enacted by Congress to secure the integrity of the fourth amendment, while protecting the national security interests of the United States by providing a mechanism for the domestic collection of foreign intelligence information.

Mr. Speaker, the purpose of the Electronic Surveillance Modernization Act is to modernize the Foreign Intelligence Surveillance Act to strengthen oversight of the executive branch concerning electronic surveillance and intelligence and to provide clear electronic surveillance authority to the national intelligence agencies in the event of a terrorist attack, armed attack, or imminent threat against this Nation.

FISA was originally constructed in 1978, more than 25 years ago. Changes in technology have caused an unintentional shift in the focus and reach of FISA. The complexity, variety, and means of communications technology has since mushroomed exponentially, while the world has become more interconnected. Think of the revolution in communications technology that has occurred in the past 25 years. The cellular technology, wireless technology, the development and explosion of Internet access, all communications tools, all technologies that allow those who would plot terrorist acts against our people to use and access in a readily available form.

We now have terrorists in remote camps who can easily communicate globally with cells around the world and within this country through the use of wireless technology and satellites. Think of the images from Afghanistan of broadcasts through wireless laptop devices using satellite technology from a cave.

The structure of our surveillance laws has remained confined to the technology of a generation-old copper wire telephone, while the terrorists are utilizing every technology and communication device at their disposal.

The House Permanent Select Committee on Intelligence received testimony that the current provisions of FISA are ``dangerously obsolete.'' H.R. 5825 modernizes the law in a number of critical respects. It updates FISA to make it technology neutral and neutral as to the means of communication. Provisions now apply to a land line phone as well as cellular and wireless modes of communication.

This legislation streamlines the surveillance approval process to keep the focus on gaining knowledge of those who would do harm to the United States while protecting the civil liberties of average Americans. It gives our intelligence personnel the necessary tools to help detect and prevent acts of terrorism and to respond to terrorist attacks.

As reported, the bill also ensures that adequate authority exists to conduct necessary electronic surveillance when a threat of imminent attack exists. The Electronic Surveillance Modernization Act also enhances congressional and judicial oversight of U.S. Government electronic surveillance activities to ensure that activities conducted under both FISA and the authorities in this bill will be utilized by the President only, only, with the knowledge and coordination of the other branches of government.

More broadly than just FISA, the bill also addresses the fundamental separation of powers concerns expressed by Members through amendments to the National Security Act by providing express authority for the chairman of the congressional Intelligence Committees to broaden their reporting on sensitive issues to additional members of the committee at his or her discretion on a bipartisan basis in necessary circumstances.

H.R. 5825 enhances the overall authorities of our Nation to act as a whole to protect itself in times of war and heightened threat of attack, both terrorist and otherwise.

I am pleased with the efforts of the House Permanent Select Committee on Intelligence and the House Judiciary Committee. This bill is an excellent example of how Congress and the executive branch can work together to ensure our national security. I thank Chairman Hoekstra and Chairman Sensenbrenner and all the members of the committees for their work. I urge Members to support the rule and the underlying bill.

Mr. Speaker, I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. PUTNAM. Mr. Speaker, I just rise to point out to the Members that we are here to modernize the FISA bill of 1978, and I ask Members to think about all of the changes in sophistication and accessibility of communication devices today.

Think about your own e-mail, your own BlackBerry, your own cell phone, your own laptop, your own desktop, just the handful of things that are directly involved in this line of work, in any routine business in America. All of those things offer multiple avenues per device to communicate around the world in an instantaneous manner at almost no cost.

Tracking that type of communication device, when it is being used by people who would fly airliners into the World Trade Center; when it is being used by people who would fly an airliner full of innocent women and children and students on field trips, and bands who have spent all year having car washes to be able to go on that trip into the center of our defense might, the symbol of our Armed Services, into the Pentagon; the kind of people who would plot to blow up 10 more airliners as recently as 5 weeks ago.

Now, it seems odd to me that that is a difficult choice, that we would want not to give all the tools possible to our law enforcement and intelligence officials. The plot that was broken up in London several weeks ago reflected two things to me: one, that we are still in grave danger; that the enemy is still, to this day, 5 years after 9/11, getting up every morning, going to bed late every night thinking of ways to destroy not just the United States, not just our allies, but those who share our values, Western Civilization in general: Madrid, Spain; London, England; the Danish, because of their free speech; and the United States are just some of the most blatant examples. We are still very much in danger. That is the first lesson of the disruption of that plot.

The second lesson of the disruption of that plot is that legislation that has passed in this country and in the U.K. in the 5 years since 9/11 worked, tearing down walls that separate discussions between intelligence gatherers and law enforcement. That legislation worked. Tracking financial transactions to be able to follow money from Hamburg to Pakistan, back to London to the ticket agent where people are about to board an airplane that they intend to blow up worked. Tracking communications among terrorists works.

If a laptop is discovered in a cave in Afghanistan, and you look on their contacts list; if a cell phone is picked up in a desk drawer in a hotel in Islamabad and you look at who their frequently called numbers are, don't you think that says a lot about that person and who they are talking to? Certainly if you look at your own it says an awful lot about you, who your friends are, who your stockbroker is, what your wife's cell phone number is. Look at your own device. And we use that same common sense, that same investigative approach to the terrorists.

So when we look at the laptop or when we look at the cell phone in Islamabad or London or Hamburg or New York and there are numbers on there from a known al Qaeda operative to someone in the United States, we ought to be on that number as quickly as possible.

Anything else is an assault on common sense. We must move as quickly, as efficiently as possible, using every technology at our disposal to prevent terrorist attacks, to disrupt terrorist attacks, and to bring to justice the people who are planning them.

Mr. Speaker, I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. PUTNAM. Mr. Speaker, it is my desire to bring this focus back to the issue at hand and bring something of a commonsense approach to this.

We are trying to modernize the FISA Act, the Foreign Intelligence Surveillance Act of 1978. Since 1978, there has been a technology revolution in communications: the Internet, cell phones, laptops, desktops for under $500, immediate, rapid, global, affordable communications on demand, satellite phones, GPS for $99. The bottom line is the terrorists can communicate, conspire, organize, recruit and train on a global basis from any spider hole, cave or clubhouse anywhere in the world.

We have to modernize the legislation that allows our intelligence agencies and our law enforcement officials to track down those bad guys, not after they have blown up the World Trade Center or after they have flown a plane into the Pentagon, but before they do those things. In other words, a September 12th mentality, as opposed to a September 10th mentality, the idea that we have to recommit ourselves to the notion that we are very much at war and that we are very much in grave danger by these radicals who have at their disposal all the tools that modern technology can provide and we are arming our law enforcement officials with 25-year-old authority.

To change that, to bring us out of the copper wire telephone world into the wireless, cellular satellite world, we have to pass this legislation. By passing this legislation, we can be assured that we are giving them everything that they need to disrupt terror attacks on our soil.

It seems to me to be a no-brainer that we should give them the tools to listen to anyone who is in regular communication with a member of al Qaeda, to anyone who is in regular communication with someone whose laptop is seized in a cave in Afghanistan after a firefight with allied forces, whose records are found in the desk drawer of a hotel in Hamburg that has been traced to be money laundering through Pakistan, through the European Union, through London, to set up cells in the United States, to buy airplane tickets, to send people to flight school.

Those are the tools that we have to give our law enforcement officials and intelligence agencies, just like the tools that we gave them when we tore down the walls that separated them and prevented them from communicating, just like the tools we gave them to track the movement of money that the terrorists were handling and these nation states who fund the terrorists were handling. Those are the tools that we give to reflect the nature of this global war on terror and to reflect the realities of modern communication technologies.

It is vitally important that we pass this bill. To pass the bill, we have to pass this rule.

The material previously referred to by Mr. Hastings of Florida is as follows:

Previous Question for H. Res.--H.R. 5825--Electronic Surveillance Modernization Act

At the end of the resolution add the following new Sections:

Sec. . Notwithstanding any other provisions in this resolution and without intervention of any point of order it shall be in order immediately upon adoption of this resolution for the House to consider the bill listed in Sec. :

Sec. . The bills referred to in Sec. . are as follows:

1) a bill to implement the recommendations of the 9/11 Commission.

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 Republican 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 Republican 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 Republican Leadership Manual on the Legislative Process in the United States House of Representatives, (6th edition, page 135). Here's how the Republicans describe the previous question vote in their own manual: Although it is generally not possible to amend the rule because the majority Member controlling the time will not yield for the purpose of offering an amendment, the same result may be achieved by voting down the previous question on the rule ..... When the motion for the previous question is defeated, control of the time passes to the Member who led the opposition to ordering the previous question. That Member, because he then controls the time, may offer an amendment to the rule, or yield for the purpose of amendment.''

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 Republican majority's agenda to offer an alternative plan.

Mr. PUTNAM. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

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