FISA -- (House of Representatives - October 16, 2007)
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Mrs. WILSON of New Mexico. Mr. Speaker, I thank my colleague from California. I very much appreciate his hosting this Special Order this evening.
Mr. Speaker, before the August break we fixed a problem. It was a problem that grew worse over the course of this year in that we were increasingly hampered in our ability to prevent another terrorist attack on this country because of the change in telecommunications and a law that was woefully outdated.
It's called the Foreign Intelligence Surveillance Act. It was put in place in 1978 to protect the civil liberties of Americans. Think about it. 1978 was the year that I graduated from high school. The telephone hung on the wall in the kitchen. Cell phones had not been invented. The word ``Internet'' did not even exist. Technology has changed since 1978, and the law had not kept pace.
In 1978, almost all long-haul communications went over the air. Almost all international communications went over the air, and they were explicitly exempted from the provisions of the Foreign Intelligence Surveillance Act. Our intelligence community folks would go ahead and collect those communications if they had foreign intelligence value. They minimized or suppressed any involvement of Americans who were innocent and just happened to be referred to in a conversation or something. But there were no restrictions on foreign intelligence collection.
Mr. Speaker, unfortunately, technology has now changed, and what used to be over the air is now almost all on a wire. The courts have found that under the old Foreign Intelligence Surveillance Act, before we changed it in August of this year, that if you touched a wire in the United States, even if you were targeting a foreign terrorist talking to another foreign terrorist who had no connection to the United States at all, then you needed a warrant. This began very rapidly to cripple our intelligence capability with respect to terrorism in particular.
The Director for National Intelligence, Admiral McConnell, has testified in open session that without the changes, without keeping the changes, making them permanent, that we put in place in August, we will lose between one-half and two-thirds of our intelligence collection on terrorism. Think about this for a second.
Now we all remember where we were on the morning of September 11, remember who we were with, what we were wearing, what we had for breakfast. Most Americans don't remember where they were when the British Government arrested 16 people who were within 48 hours of walking onto airliners at Heathrow Airport and blowing them up simultaneously over the Atlantic. They don't remember it because it didn't happen.
The American people want us to prevent the next terrorist attack. They don't want to have to remember where they were when a preventable disaster happened. That is what intelligence gives us, and that is why the Protect America Act is so important and why we have to make it permanent.
Sadly, the Democratic majority is going to bring a bill to the House this week which will gut the progress that we made in early August. They say things in this bill that, on its face, initially you think, well, that makes sense. One of them is you would not need a warrant for any foreign-to-foreign communication.
Well, doesn't that solve the problem? Wait a second. If Mr. Lungren, my colleague from California, was a foreign terrorist, just for the purposes of discussion, how do I know who he is going to call next? I don't. And if the law says that it is a felony to listen to the conversation of someone who is a foreigner calling into the United States, that means as soon as I collect that conversation, as soon as that terrorist makes a phone call into the United States, I become a felon. As a result, you have to have warrants on everyone.
It doesn't relieve the system of this huge legal bureaucracy. It means they have to get warrants on every foreigner in foreign countries, even if they are only talking to foreigners, because they might some day pick up the phone and call an American. And, oh, by the way, that is the conversation we want to be listening to. If we have a terrorist affiliated with al Qaeda calling into the United States, you bet we should be on that conversation. We should be all over that like white on rice. We shouldn't be waiting to get a warrant from a judge in Washington, D.C.
But it gets worse than that. They also put in this bill some things called blanket warrants.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, reclaiming my time, I have referred to that section, that first section where they say you don't need it if it is foreign-to-foreign as the ``furtive fig leaf'' section of the bill, which appears to give Admiral McConnell what he needs, but because of the actual practicality of it, denies him the opportunity to do it, because essentially that was sort of the state of the law prior to the time we passed the law in August, and he told us it doesn't work.
Mrs. WILSON of New Mexico. If the gentleman would yield further, that is exactly right. There is already a provision in the law and was in 1978 that if it was foreign-to-foreign communication, you didn't need a warrant.
There are some circumstances where you are tapping into a line that is between a command headquarters of the former Soviet Army and one of their missile silos where it is a dedicated line. But modern telecommunications don't operate that way, and the terrorists who are trying to kill us are using modern commercial telecommunications. They are not using dedicated lines between headquarters. They don't even have headquarters.
Mr. DANIEL E. LUNGREN of California. If the gentlewoman would allow me to reclaim my time for a moment, evidently some on the other side of the aisle have listened to a little bit of our complaint here, so in the manager's amendment they have included what they consider to be the saving piece of that first section, which says if the electronic surveillance referred to in paragraph 1 inadvertently collects a communication in which at least one party to the communication is located inside the U.S. or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General.
If that is all they did, that would be fine with me. But they then go on to say this, that require that no contents of any communication to which the United States person is a party shall be disclosed, disseminated or used for any purpose or retained for longer than 7 days, unless you get a court order or unless the Attorney General determines specifically in this case that the information indicates a threat of death or serious bodily harm to any person.
Now, Admiral McConnell has suggested to us that time frame, they say you can't keep it longer than 7 days, may not be practical within the contours of how we actually get that information, number one; and, secondly, you can't use that information. You can't give it to anybody. You can't disclose it to the FBI, even though the information doesn't make the person in the United States a target, the information contained in that conversation is all about Osama bin Laden calling into the United States and something he says that is important for our purposes. That is the extraordinary thing here, because it says no contents of any communication to which the United States person is a party shall be disclosed, disseminated or used.
It is exactly contrary to what Admiral McConnell said, which is the law should be directed at the identity of the individual we are targeting. So in this case, because you now capture a conversation that has taken place with the foreign person in a foreign land into the United States, even though it doesn't give rise to anything that would make a target of that person in the United States, you can't use any of that conversation with respect to the target for which you don't need a warrant, even though that person could be Osama bin Laden or one of his top people.
That is nuts. With all due respect, I use the word ``nuts,'' but I think that is probably proper.
Mrs. WILSON of New Mexico. Let's just think of an example here. Let's say Osama bin Laden or one of his chief lieutenants did call into the United States to a completely innocent person, a completely innocent person under this law which the Democrats are going to try to pass this week, and what he says in that conversation is ``Don't go to the Sears Tower tomorrow. Stay away from the Sears Tower tomorrow.'' Whoever in the intelligence community gets that communication is barred by law from giving it to anyone who can take any action to prevent a terrorist attack on this country.
Mr. DANIEL E. LUNGREN of California. Unless they go to court and get an order, which requires all of the necessary preparation that Admiral McConnell has told us we cannot do.
Mrs. WILSON of New Mexico. You may not even know who the person is being called, other than it is an area code and number in the United States, which means you don't have any probable cause. You have to send the FBI out and find out whose number that is and whether they are reasonably believed to be involved in a crime.
But the threat is immediate. We cannot have our intelligence agencies tied up in legal redtape when they are the first line of defense for this country in the war on terrorism.
I am appalled that we have people in this body who put forward legislation who seem to be more concerned about protecting the civil liberties of terrorists overseas than they are about protecting Americans here at home and preventing the next terrorist attack.
This would be an unprecedented extension of judicial oversight into foreign intelligence operations. We don't even do this in criminal cases, and my colleague is much more experienced in criminal law than I am. But if we are listening to a Mafia kingpin and he happens to call his son's second grade teacher.
Mr. DANIEL E. LUNGREN of California. Or his sainted mother or his brother, the priest.
Mrs. WILSON of New Mexico. Anybody. And we are not prevented from using that information until we get a warrant on the priest or his mother or his son's second grade teacher. The target is the Mafia kingpin.
This legislation will tie our intelligence community in knots in order to protect the civil liberties of terrorists in foreign countries who are trying to kill Americans.
There are some in this body who may believe we shouldn't have intelligence services. I believe it was Hoover who said that gentlemen shouldn't read each other's mail. Well, we are not dealing with gentlemen here. We are dealing with terrorists who are trying to kill Americans and are using commercial communications to talk to each other. We must do everything we can to prevent that terrorist attack, and that means listening to their conversations if we get an opportunity to do so.
Mr. DANIEL E. LUNGREN of California. I would like to pose this question to the gentlelady. The gentlelady has studied this issue for a long time and was one of the first people to raise certain points of considered alarm, trying to bring a sense of urgency to this House to respond to the threat that is out there.
There is another troubling aspect of the bill to be brought to the floor. It has a sunset of December 31, 2009. So that would suggest to anybody looking from the outside that there is an end game or an end date at which the threat no longer exists. Can the gentlelady give us any advice, considered opinion, as to whether or not this threat is long lasting? Or should we limit this law just to the next 2 years?
Mrs. WILSON of New Mexico. I don't think anybody believes that the threat of Islamic terrorism to the United States, or other foreign threats, are somehow going to go away in the next 18 months. That is just not going to happen. What is even worse about this bill, while they set up some system of blanket warrants with respect to some national security matters, they do not allow any so-called blanket warrants for things that are outside of direct threats to the United States, which is unprecedented in foreign intelligence collection.
That means if we are trying to listen to Hugo Chavez in Venezuela, or we are trying to figure out whether the leader of Sudan is about to launch another wave of genocide in Darfur, or we want to listen in to what the Chinese or the North Koreans are talking to each other about with respect to the Six-Party Talks and the potential for weapons of mass destruction on the Korean Peninsula, we are absolutely prohibited from listening to those conversations without a warrant from a court in the United States of America. The courts have never been involved in that way. Never in the history of this country, nor should they be. Foreign intelligence collection of foreigners in foreign countries has never been subject to warrants here in the United States.
Mr. DANIEL E. LUNGREN of California. Today I presented two amendments before the Rules Committee for consideration on this floor. Both were denied. One would have expanded the definition of foreign intelligence individuals or states to include nonstate actors who are involved in proliferation of weapons of mass destruction.
The reason I did that is al Qaeda is not a state. There are free actors out there who would attempt to work with nation states or with organizations such as al Qaeda; and technically under the definition currently in the FISA law, they are not covered so that we couldn't do these sorts of things you talk about, listening in on their conversations without warrants, even though they may be as much a threat as a small nation state somewhere. But yet we don't even have an opportunity to discuss that on the floor of the House because that amendment and every other amendment was denied.
Mrs. WILSON of New Mexico. There is historical precedent for this, one of a Pakistani who ran a criminal enterprise, an international network that was selling nuclear materials and the capability to build nuclear weapons to people and countries around the world. While he was Pakistani by nationality and had helped with the Pakistan Government's weapons program, there was no question that he wasn't acting as an agent of Pakistan, at least I don't think there was. He was running a criminal enterprise for money, and we should be able to listen in and track people like that.
Likewise, I think our foreign intelligence should be able to listen to narco-rings in Burma and be able to detect whether there are cocaine smugglers who are trying to ship drugs into the United States.
These are all foreigners who are doing things that we do not like that are not in our interests and our intelligence capabilities should be used to disrupt those things. This law would shut that down. Shut it down. And Admiral McConnell has been very clear on that.
Mr. DANIEL E. LUNGREN of California. Let us return to the protections of Americans.
In the criminal justice system for years and years and years, somewhere between 30 and 50 years, we have done minimization, which means that if you have a wiretap on a Mafia member, and as I say, he calls his sainted mother or his priest, and the conversation has nothing to do with Mafia activities, that is minimized. That is, it is taken out of the data field and thrown away, essentially. If he says something in that conversation, while not implicating the other person in the conversation that is of benefit to our investigation, that is, he comments he is going to be going to Nashville and that's an important piece of information for us to know, we can use that. If the receiver of the conversation or communication, by what he or she says, indicates activity of an illegal nature such that that person becomes a target, it is at that point we require a warrant for that person.
Similarly, the way the law that we passed in August works is once you have the legal nonwarrant wiretap, or whatever you want to call it, catch of or capture of the communication because the target is a foreigner in a foreign country and you have reason to believe they are involved in some way that is covered under the law, that conversation or communication to someone within the United States is treated in the very same way.
If the conversation has nothing to do with terror, it is minimized. It is thrown out. If the conversation contained some information about the legal target that is of benefit, we can use that information against that target. If in fact the response or the statement made by the person in the United States, the American, is of a nature that gives us cause to believe that person is involved in terror, we then go get a warrant because that person becomes a target. Is that the gentlelady's understanding of how we operate?
Mrs. WILSON of New Mexico. That is exactly how this law works. If the target is an American, you need a warrant. If the target is a foreigner, you don't need a warrant; foreigner in a foreign country.
I think one of the things that is important to remember here, something that has been the greatest accomplishment in the last 6 years in this country has been what has not happened. We have not had another terrorist attack on our soil. And it is not because they haven't tried.
Osama bin Laden and al-Zawahiri have been very clear: they want to kill millions of Americans, and they will do it if they can.
The question is whether we will use the tools at our disposal, entirely constitutional and legal tools, in order to prevent the next terrorist attack, to stop the attack on the USS Cole, to prevent the planes from taking off from Heathrow to kill thousands of innocent Americans. Intelligence is the first line of defense in the war on terrorism. It is possible to provide our intelligence community with the tools to keep us safe while protecting the civil liberties of Americans, and that is the perspective that the Democrat majority has lost.
When Admiral McConnell appeared before the Judiciary Committee, he wanted to make clear our understanding of the technology of the capture of conversations. And he put it this way: he said when you are conducting surveillance in the context of electronic surveillance, you can only target one end of the conversation. So you have no control over who that number might call or who they might receive a call from. He then went on to say if you require a warrant in circumstances that we have never required before, as is the implication of the bill to be brought before us, he said if you have to predetermine it is a foreign-to-foreign before you do it, it is impossible. That's the point. You can only target one. If you are going to target, you have to program some equipment to say I am going to look at number 1, 2, 3. So targeting in this sense, you are targeting a phone number that is foreign. So that's the target. The point is you have no control over who that target might call or who might call that target.
Is that consistent with your understanding in the years you have been on the Intelligence Committee and the years you have looked at this issue?
Mrs. WILSON of New Mexico. That is exactly right. The biggest problem is that the terrorists who are trying to attack us, and even foreign governments, are increasingly using commercial communications. So they don't have dedicated lines between a couple of government buildings. In modern communications, those communications will flow wherever it is fastest to get to wherever they are calling to. Sometimes that call will transit the United States, and we shouldn't require a warrant just because the point of access to that conversation happens to be within the United States.
Mr. DANIEL E. LUNGREN of California. I know we only have about 5 minutes left. This is testimony that Admiral McConnell gave before the Judiciary Committee. He was asked this directly by a Member from the other side of the aisle: How many Americans have been wire tapped without a court order?
The direct response by the DNI, none. He went on to say there are no wiretaps against Americans without a court order. None. What we are doing is we target a foreign person in a foreign country. If that foreign person calls in the United States, we have to do something with the call. The process is called minimization. It was the law in 1978. It is the way it is handled.
Is that your understanding?
Mrs. WILSON of New Mexico. That is my understanding, and he has testified to that in the Intelligence Committee as well. That is what gets lost here. People seem to think that somehow this impacts the civil liberties of Americans. No, this bill that the Democrats are bringing to the floor this week will extend civil liberties protections to foreigners trying to kill Americans. It will make it harder for our soldiers and our law enforcement folks and our intelligence community to find out when the next attack is coming in order to prevent it.
I don't understand why they are going in this direction. Sometimes I don't think they really understand what they are doing here. Sometimes I think it is not entirely intentional on the part of some of these folks, that they really do not understand how this works and how badly they are crippling American intelligence if they pass this law.
Mr. DANIEL E. LUNGREN of California. We should recall the words of the United States Supreme Court in the Keith case which is the case that dealt with wiretaps in the United States. They said that while there was no warrant exception in domestic surveillance cases, it was not addressing the question of activities related to foreign powers and their agents. And in that unanimous opinion, the court noted that were the government to fail ``to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered.''
Justice White, a John Kennedy appointment to the Court who personified the definition of a moderate, said this in his concurring opinion in the Katz v. U.S. case: ``We should not require the warrant procedure in a magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.''
In other words, the court when it dealt with this issue those years ago recognized the difference between a criminal justice system and a system of intelligence and counterterrorism to protect our country from attack by those who would basically destroy everything, including our Constitution and our constitutional foundation.
Mrs. WILSON of New Mexico. If you think about how the challenge has changed since the Cold War, in the Cold War, we had early warning systems. We had Cheyenne Mountain that was watching early warning systems to see if Soviet bombers were heading towards us or missile systems had launched, immediately scrambling airplanes and taking immediate action to protect this country.
And we had intelligence systems set up to be able to detect and give us that early warning. The problem has changed, but the need for early warning is still there.
Now, what we didn't do when we got a detection that bombers were coming towards the United States was call the lawyers in Washington to see if we could launch our airplanes to protect us. The system was set up to be fast and immediately responsive.
What the Democrats are going to do this week is to say if you get a detection, if you believe you have early warning, that the terrorists are coming to destroy Americans or attack Americans, put that on hold while you go get a warrant, talk to judges, take hours to decide whether we can respond. That will not allow us to protect America.
Mr. DANIEL E. LUNGREN of California. The gentlelady is exactly correct, and let me suggest, to get down to basics, that when surveillance is directed overseas, legitimate concerns relating to purely domestic surveillance are not implicated. We should all be concerned about the protections of civil liberties, as the 9/11 Commission put it.
The choice between security and liberty is a false choice as nothing is more likely to endanger America's liberties than the success of a terrorist attack at home.
And I thank the gentlelady for her comments.
Mrs. WILSON of New Mexico. I thank the gentleman for having this hour tonight.