Harman Statement on Mark-Up of NSA Surveillance Legislation

HARMAN STATEMENT ON MARK-UP OF NSA SURVEILLANCE LEGISLATION

Says no need to fix something that isn't brokens

Rep. Jane Harman (D-Venice), Ranking Member on the House Intelligence Committee, today made the following remarks at an Intelligence Committee mark-up of the White House/Wilson Foreign Intelligence Surveillance Act (FISA) Reform Bill, HR 5825, which was reported out of committee on a strict party line vote:

The 9/11 anniversary has framed a debate in Washington and around the country about whether, five years later, the government's response to terrorism has made our country as secure as it can be. There is ample evidence in our Committee that much remains to do. We still must learn the whereabouts of Bin Laden and Zawahiri, so we can capture them; have intelligence dominance in Iraq so we can protect our forces; penetrate global terror cells to prevent them from attacking us; plug gaps in our homeland security; and prevent nuclear material from being acquired by hostile forces bent on using it against America and its allies.

Instead of working on these critical problems, today the Committee meets to fix something that isn't broken - the Foreign Intelligence Surveillance Act (FISA). FISA is a modern, flexible statute that allows the government to conduct electronic surveillance on Americans. As the record in our Committee has made clear, FISA is a vital tool for the FBI, the CIA, and the NSA in their investigations of terrorism and espionage. The FISA system isn't perfect. Its implementation within the Executive Branch can be streamlined, and Congress could clarify its intent with minor changes.

But there is no evidence in the record of our Committee that FISA must be rewritten in favor of a new regime permitting broad warrantless surveillance of Americans. Yet, the bill we are marking up today, HR 5825, does just that. Let me be clear: I take a backseat to nobody in supporting strong, modern tools for our intelligence professionals to track terrorists. But I also believe that the Constitution, the Fourth Amendment, and liberties guaranteed to the people of this nation are too precious to be cancelled in the absence of a compelling argument that the nation's survival depends on it. We have heard two main arguments for amending FISA, and I want to address each briefly.

First, it is claimed that FISA is "outmoded." That might be true had FISA been unaltered over the past 28 years. But FISA has been amended and modernized numerous times, including most recently in the reauthorization of the USA PATRIOT Act in March. The Congressional Research Service provided a report to this Committee -- inserted into the record at our last public hearing -- showing that 51 separate provisions in 12 different bills have amended FISA. Any argument that FISA is "behind the times" should be news to those in this Administration who asked for, and received from Congress, 12 statutory changes in the last 5 years.

FISA has been amended to allow for "roving John Doe" wiretaps. FISA has been amended to allow for internet pen-trap orders. And FISA has been amended to allow NSA to begin surveillance 72 hours before a warrant is approved by the FISA court.

We all agree that FISA must keep pace with technology. An amendment we plan to offer will ensure that FISA is technology-neutral - that is, it will not matter whether the surveillance is conducted by tapping a wire or intercepting wireless or satellite communications. But this change can be achieved with a small technical fix - not by creating new loopholes that gut FISA.

Second, some argue that the process of getting warrants under FISA is too burdensome. We have received no evidence in this Committee that the text of the statute is the source of that problem. NSA officials have testified that the administrative process is slow. But FISA imposes virtually none of the administrative requirements that slow the system. Most of the red tape has built up within the Executive Branch, and the Executive Branch could fix that through better management. The record in our Committee is that this process can and does move efficiently in true emergencies. We have heard testimony that emergency warrants can be obtained very quickly, usually within the same day and even sometimes in minutes, and that warrants can be approved orally in many cases. If there is a backlog for non-emergency warrants, the Executive Branch should fix that problem. We should not lower the standard of the Fourth Amendment when a simple agency regulation can do.

If the Administration has an argument that FISA needs a radical fix, we have not heard it. On July 27, Mr. Chairman, I asked you at our public hearing whether we would hear from an Administration witness. You replied: "There will be a hearing with Administration officials, and, of course, that depends on their availability and the availability of the schedule as to whether we can get that done in September or not." Despite that promise, you have not invited any Administration witness to testify before us. Attorney General Gonzales has had time to deliver six speeches in September, provide interviews to CNN and the Houston Chronicle, and brief reporters on Monday about the Military Commission issue. I am quite sure that, if invited, he would have found time to testify to the Committee of jurisdiction about legislation that is deemed ‘vital' for national security. He did not appear because this Committee did not invite him.

I, therefore, do not believe we have a sufficient record upon which to enact sweeping changes to a statute that has worked well, that has been modernized a dozen times since 9/11, and that provides the basis for effective, strong, and legal surveillance of terror suspects.

I am also disappointed that this mark-up will not consider other FISA legislation referred to our Committee. The LISTEN ACT (HR 5371) is co-sponsored by 64 House Members, including all 9 Democratic Members of this Committee. It has been endorsed by a range of civil liberties leaders, including a former Reagan official and a former Republican member of Congress. It was introduced two months before the HR 5825, and has much broader support.

There has also been a stunning dearth of oversight over the President's NSA program in this Committee. Months ago, I asked that Committee members meet with the NSA Inspector General, Members of the FISA Court, the Department of Justice, the FBI, and the CIA to learn whether the program has helped stop any terrorist attacks. The Majority denied each of those requests. I have asked for a copy of the President's Authorization for the Program and for other core documents. The Administration has refused to produce them. In June, I asked you, Mr. Chairman, to write a letter with me to the NSA Inspector General asking to review his seven reports on the program. You did not send that letter. A two-hour PowerPoint presentation from an NSA official, or an occasional briefing by the NSA Director, does not constitute sustained, serious oversight. None of these briefings has been on-the-record, on the purported theory that we could not find a single cleared stenographer … even though thousands of Executive Branch officials have been briefed into this program! The American people deserve better.

Protecting America from terrorism is our highest duty. Let's get serious about the task. We all know that it's an election season, and that a debate on surveillance brings political benefits to some. But that, my colleagues, is a terrible reason to legislate. And I, for one, do not want to suspend our 217-year-old Constitution today for political reasons or for no reason at all.

http://www.house.gov/list/press/ca36_harman/09_20_06.html