PROTECT AMERICA ACT OF 2007 EXTENSION -- (House of Representatives - February 13, 2008)
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Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today in support of H.R. 5349, to extend the Protect America Act of 2007 for 21 days. Let me be clear that while I do not support legislation that grants legal immunity to telecommunications companies that provide information to Federal investigators without a warrant, I recognize that the current legislation is set to expire this Saturday, February 16th. Although I do not support the Protect America Act, we need more time to work with our colleagues in the Senate on the substance of this legislation in order to ensure that we reconcile the Senate language with the RESTORE Act (H.R. 3773), which we passed in the House on November 15, 2007.
I would like to thank my Senate colleague Senator FEINGOLD, from Wisconsin, for his diligent work in trying to amend this legislation to protect American civil liberties, both at home and abroad.
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.
The original legislation offered by the House Majority gave the Administration everything that they needed, but what the Senate is proposing virtually throws our Bill of Rights out the window, because they are telling Americans that no matter what your business is, you are subject to the unchecked scrutiny of the Attorney General without judicial intervention.
I am disheartened by the other body for their failure to recognize that we can secure America by passing responsible electronic surveillance legislation that does not compromise our civil liberties.
Madam 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 2 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. But 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.
The RESTORE Act, H.R. 3773, is superior to the PAA by orders of magnitude. This is due in no small measure, Madam Speaker, to the willingness of the leadership to reach out to and work with all members of the House. The result shows. The RESTORE Act does not weaken our Nation's commitment to its democratic traditions. Rather, it represents a sound policy proposal for achieving the only legitimate goals of a terrorist surveillance program, which is to ensure that American citizens and persons in America are secure in their persons, papers, and effects, but terrorists throughout the world are made insecure. Let me direct the attention of all members to several of the more important aspects of this salutary legislation.
First, H.R. 3773 explicitly affirms that the exclusive law to follow with respect to authorizing foreign surveillance gathering on U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As initially enacted by Congress in 1978, the exclusivity of FISA was undisputed and unambiguous. I hasten to add, however, that while FISA remains the exclusive source of law, H.R. 3773 recognizes that the law as enacted in 1978 can and should be adapted to modem circumstances and to accommodate new technologies. And it does so by making clear that foreign-to-foreign communications are not subject to the FISA, even though
modern technology enables that communication to be routed through the United States.
Second, under H.R. 3773, 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-
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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.
Third, the bill does not grant amnesty to any telecommunications company or to any other entity or individual that helped federal intelligence agencies spy illegally on innocent Americans. I strongly support this provision because granting such blanket amnesty for past misconduct will have the unintended consequence of encouraging telecommunications companies to comply with, rather than contest, illegal requests to spy on Americans. The only permissible path to legalization of conduct in this area is full compliance with the requirements of the Foreign Intelligence Surveillance Act.
Moreover, Madam Speaker, it is important to point out that the loudest demands for blanket immunity come not 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.
Madam Speaker, the authorization to conduct foreign surveillance on U.S. soil provided by H.R. 3773 is temporary and will expire in 2 years if not renewed by the Congress. This is perhaps the single most important limitation on the authority conferred on the Executive Branch by this legislation. The good and sufficient reason for imposing this limitation is because the threats to America's security and the liberties of its people will change over time and thus require constant vigilance by the people's representatives in Congress.
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.
The Jackson Lee amendment 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.
Let us be clear, Madam Speaker, that nothing in the bill or in my amendment requires 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, the bill requires, as our amendment makes clear, 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. And 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.
The Jackson Lee amendment gives the Government precisely what Director of National Intelligence McConnell asked for when he testified before the Senate Judiciary Committee:
It is very important to me; it is very important to members of this Committee. We should be required--we should be required in all cases to have a warrant anytime there is surveillance of a U.S. [sic] person located in the United States.
In short, the Jackson Lee amendment makes a good bill even better. For this reason alone, civil libertarians should enthusiastically embrace the RESTORE Act.
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.
I would ask my colleagues to support this 21-day extension so that we may work together as a body, Members of both the
House and the Senate to provide our citizens with the protections they so richly deserve. We need to have time to reconcile the differences between the House and the Senate in order to ensure that the important provisions of the RESTORE Act protecting the constitutional rights of Americans is preserved. I ask my colleagues to support the Bill of Rights and national security by supporting the 21-day extension in H.R. 5349.
Madam 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.
First, I was prepared to accept temporarily obviating the need to obtain a court order for foreign-to-foreign communications that pass through the United States. However, I continue to insist upon individual warrants, based on probable cause, when surveillance is directed at people in the United States. This can be negotiated during this 21-day extension period.
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, Madam 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.
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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.
Madam Speaker, the legislation before us is only necessary to give this body time to work with our colleagues in the Senate. The 21-day extension will give us time to impress upon the Senate, how important it is to protect the civil rights of all Americans.
I encourage my colleagues to join me in a vote of support of this 21-day extension. H.R. 5349 gives us time to amend the unwise and ill-considered reauthorization of the Protect America Act of 2007.
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