IN SUPPORT OF H.R. 6304 -- (Extensions of Remarks - July 10, 2008)
HON. PATRICK J. MURPHY
IN THE HOUSE OF REPRESENTATIVES
THURSDAY, JULY 10, 2008
* Mr. PATRICK J. MURPHY of Pennsylvania. Madam Speaker, I rise today to discuss my support of H.R. 6304--The FISA Amendments Act of 2008.
* From the Revolutionary War to the tragedy of 9/11, America's quest for freedom is what defines us. It is imperative that we never forget those who died for our liberty, nor can we ignore the failures of our own intelligence leading up to that day in September 7 years ago. Balancing civil liberties and protecting our national security has been a 232 year struggle that represents the core of this great Nation.
* As such, the year-long debate this body engaged in updating FISA has hinged on a question that rests at the heart of American democracy since its founding: how do we keep our Nation safe, while at the same time ensuring the preservation of those Constitutional freedoms that we hold dear? It was Benjamin Franklin who warned that those who sacrifice liberty for a little security deserve neither.
* When the first effort to amend FISA--The Protect America Act--came before this House in August of 2007, I voted against that deeply flawed bill because it did not ensure proper protection of our civil liberties, nor did it provide the appropriate check over the executive branch. In fact, neither the Protect America Act, nor the subsequent ``Senate compromise,'' included essential oversight provisions. Those bills, rather, sought to minimize the role of the FISA court, removing any form of meaningful judicial oversight over the President and the executive branch.
* My sense of justice as a former prosecutor and my experience as a constitutional law professor at West Point led me to the inescapable conclusion that our initial attempts to craft the appropriate balance failed.
* Madam Speaker, the issue of foreign surveillance predates the founding of our very republic--traceable to George Washington, who made effective use of secret intelligence, including the interception of mail from the British.
* However, I do not need to remind anyone in this Chamber that we have not always gotten this delicate balance right. Hindsight has shown us that too often in our Nation's past we have tipped the scale too far from liberty in the face of outside threats, hostile adversaries, and most-troubling simply outspoken American citizens.
* We know many of these excesses: the eavesdropping on Martin Luther King, Jr. and anti-war demonstrators, and of course, President Nixon's use of Federal resources to spy on political groups. History has judged those decisions as leaving an enduring stain on our institution and our government--as it should.
* In the late 1970s, the Church Committee and this institution worked to curb domestic intelligence abuses. Checks and balances were restored among the three branches of government, and the ability of our government to protect all of us from national security dangers was enhanced while at the same time respecting our privacy rights.
* These efforts led to the passage of the original Foreign Intelligence Surveillance Act of 1978, placing--for the first time--accountability and oversight of domestic intelligence gathering in the hands of courts and Congress. FISA also put an end to the practice of warrantless domestic wiretapping for national security reasons, mandating that domestic ``national security'' wiretaps be authorized by a court of law--creating a separation between domestic law enforcement and foreign surveillance for national security concerns.
* Again, with that historical perspective in mind, I opposed those original proposals and I am glad that the House of Representatives staved off partisan ploys to push this body to rubber stamp those misguided efforts.
* I believe that the bill we ultimately passed was a significant improvement in nearly every aspect over the Senate's or the President's proposals.
* Madam Speaker, Mike Schmidt, the greatest third baseman who ever wore a glove for the Philadelphia Phillies once said, ``Philadelphia is the only city where you can experience the thrill of victory and the agony of reading about it the next day.''
* I empathized with Mr. Schmidt when I opened my morning paper the day after we voted on this critical piece of legislation.
* That is why, Madam Speaker, I thought it necessary to elaborate on why I supported the bill, and clarify some common misconceptions about the Foreign Intelligence Surveillance Act and the bipartisan changes we recently passed.
* Madam Speaker, my decision to vote in favor of the FISA Amendments Act was not one that I came to lightly. As a former prosecutor charged to keep our community safe, somebody who has taught constitutional law for years to our future military leaders at West Point, and proudly served this country in uniform, I thought and prayed long and hard about the best course of action. Now, as a member of Congress, it is still my duty to defend the constitution and work to keep our community safe.
* I believe, Madam Speaker, that this House and this bill ultimately struck the right balance.
* The FISA debate in the 110th Congress has been pushed by two events: the first, President Bush's unauthorized ``terrorist surveillance program,'' conducted outside the scope of FISA; and the second, a FISA court decision that most people, including myself, thought was wrongly decided and undermined our intelligence capabilities abroad.
* It is widely agreed that no warrant should be necessary to tap the phone of a foreign national talking to another foreign national on foreign soil. The major point of contention, however--what this year-long wrangling has been about--is what to do when targeting, for example, a terrorist sect in Pakistan whose communications end up hitting American soil. Certainly it would be overly cumbersome and perhaps dangerous to require an individualized warrant for every foreign target in the off-chance their contacts involve an American; but correspondingly, assurances must be put in place to ensure that all U.S. citizens who might be caught in such surveillance are given the protections that they are due as Americans. This, Madam Speaker, was the needle we were required to thread.
* The bill ensures that--in order to protect the rights of Americans--foreign surveillance targeting of non-U.S. persons abroad must be approved by the FISA Court prior to the start of any intelligence collection to ensure sufficient oversight of executive branch activities. This requires the administration to show how they determine that the targets of surveillance are actually foreigners and are actually located outside the United States. Additionally the FISA Court must approve the minimization procedures in place before surveillance can begin. Minimization is the process where the NSA prevents the dissemination of inadvertently collected information about U.S. persons. The bill also establishes a general prohibition against using FISA to ``reverse target'' Americans.
* Additionally, the bill requires individual warrants from the FISA Court in every single case, based upon probable cause, to conduct surveillance of U.S. persons, whether at home or traveling abroad. While this provision has not been widely reported, this is an expansion of protections under the original FISA bill. For the first time, Madam Speaker, an individual probable cause determination and court-approved order will be needed to conduct surveillance of every American citizen, regardless of where they are located.
* Perhaps most importantly, Madam Speaker, the bill restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance--making it clear that the no President will be able to sidestep the exclusivity provisions of FISA and disregard the civil liberties of the American people. Under this legislation the current President's illegal program of warrantless surveillance will officially come to an end, thereby firmly reestablishing basic judicial oversight over all domestic surveillance in the future.
* The other major provision of the bill, Madam Speaker, is title II--defining the role of liability litigation procedures for telecommunication companies. Madam Speaker, to be frank, as a former Federal prosecutor and the son of a Philadelphia police officer the issue of immunity has always been a tough pill to swallow. Growing up in Northeast Philadelphia and schooled at St. Anselm's Parish, I was reared in somewhat ``black and white'' terms--wrong-is-wrong and punished accordingly.
* But quickly I learned, as a judge advocate and special assistant United States Attorney, that at certain times legal immunity is an unfortunate necessity to encourage cooperation and testimony against those more culpable of committing the underlying offense. Madam Speaker, I have never liked seeing people get away with only a slap on the wrist, but I have grown to understand it can be a necessary tool to insure that justice is served.
* If the telecom companies are ultimately shielded from litigation by United State District Courts for their involvement with the current administration's illegal warrantless wiretapping program, they should be forthright and cooperate with congressional investigators pursuing those in the Bush administration who are truly to blame for the violation of our constitutional rights.
* But more importantly, Madam Speaker, a principal reason for immunity in this instance is to keep civil lawsuits, or the fear of them, from establishing Federal policy on a matter of grave national concern--both because of the security interests and because of the civil liberty interests. This policy should be established and enforced through the actions of congress and the executive branch.
* And just to be clear, Madam Speaker, nothing in this bill confers immunity on any government official for violating the law. In fact, this bill requires the inspectors general of four major national agencies to conduct a comprehensive review of the President's warrantless surveillance program and report back to the Intelligence and Judiciary Committees.
* I promise the families in my district and across the country, that as long as I sit on the House Intelligence Committee, and as long as I serve in Congress, I will fight every day to demand answers and accountability from those who have held themselves above the law.
* Madam Speaker, above all, I would like to note that the bill that passed this House was a much needed compromise. And as is the nature of any compromise, concessions were made and agreements reached in the effort to advance this piece of legislation. While it was not a perfect bill, nor is it the one I would have written, it is without question a significant improvement over prior flawed proposals.
* Madam Speaker, I would like to take a second to read a quote:
* ``The art of compromise, which is essential to democracy, seems to have gone out of style in recent years of angry all-or-nothing politics ..... the result is often no legislation, and many issues are left to fade or fester.''
* That quote, though eerily reminiscent of our modern political paralysis, was published in a Time Magazine editorial--on March 29, 1976. The editorial, however, continues on and heaps praise on Congress and the executive branch for their efforts in overcoming partisan gridlock to do what we seek to do--limit unwarranted wiretapping done under the auspices of national security.
* It was a compromise crafted by Attorney General Edward Levi and a Democratic Congress. A compromise that Time noted ``beats showy confrontation, veto and stalemate.'' I think most of us, Madam Speaker, can agree that this sentiment rings just as true today.
* Let me be clear. I am no Attorney General Levi, nor do I portend to know how history will judge us or this legislation.
* But I can promise that I sincerely believe that this bill--this compromise--threaded the needle and I am proud of our efforts.
* Some of my friends on the left are not happy; some on the far right are not either. But we all take seriously, the incredible responsibility we are given. I hope and pray that history proves our fidelity to our Constitution, as well as our commitment to protecting the safety of those we serve.