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FISA Amendments Act Reauthorization Act of 2012

Floor Speech

Location: Washington, DC


Ms. JACKSON LEE of Texas. Thank you, Mr. Chairman.

Mr. Speaker, I am delighted to join the chairman of the full committee and the ranking member of the full committee in this vigorous debate on the Constitution. I am also delighted that the ranking member has indicated, by his reference to the previous speaker, that this is a bipartisan challenge and question about the reauthorization. This does not have a partisan place. It does have a place in the Constitution.

As I do this, might I take just a moment, Mr. Chairman and Mr. Ranking Member, just to acknowledge the loss of our Americans who fell in Libya--Ambassador Stevens and those who were securing him. It is a recognition that we live in a difficult world; but one of the distinctive aspects of America is that we live in a free country, that we are willing to accept the distinctions and differences of all people and that we respect the privacy and the Fourth Amendment.

So I might refresh my fellow colleagues as to what FISA does from the very beginning. It is electronic surveillance, physical searches, the installation and use of pen registers and trap-and-trace devices, and demands for the production of physical items. Although FISA is designed for intelligence gathering and not for the collection of criminal evidence, the law applies to activity to which a Fourth Amendment warrant requirement would apply if they were conducted in a criminal investigation. Members need to understand there are questions of the Fourth Amendment right here. So what those of us who have a concern on this reauthorization are asking for has simple premise:

We want to join with Congressman Conyers and his simple amendment that allows for greater congressional oversight and the protection of the Fourth Amendment as it relates to Americans by shortening the reauthorization to 2015 from 2017. It intrudes the Congress properly in oversight. In addition, there should be more transparency in the surveillance program, such as requiring the creation of unclassified versions of the intelligence assessments of the surveillance program, requiring the creation of unclassified summaries.

I introduced a simple amendment. We all have respect for the Inspector General's office. That is one independent force of our agencies that most Members of Congress will not challenge. My amendment would require a report by the Inspector General of the Department of Justice and the Inspector General of the intelligence community on the implementation of the surveillance program under the FISA Amendments Act of 2008.

Now, let me try to find out what the horrifically liberal groups are that are concerned about this. What about the American Library Association? the Association of Research Libraries? the very well-respected Brennan Center for Justice? the Center for Democracy & Technology? the OpenTheGovernmentÐ.org?

What we are simply saying today--and we hope our colleagues will listen on both sides of the aisle--is that, yes, we can reauthorize this legislation but that, no, we cannot abdicate the questions of congressional oversight. Today, we had a hearing on the abuse of power. The only issue in abuse of power is whether or not we respect the three branches of government. That is the argument we are making today. Do you respect the three branches of government--the people's House, who represent the people, who by themselves cannot defend themselves against this extensive reauthorization?

The SPEAKER pro tempore. The time of the gentlewoman has expired.

Mr. CONYERS. I yield the gentlelady 30 more seconds.

Ms. JACKSON LEE of Texas. In the course of this particular legislation, we had to contend with such things as warrantless wiretapping. Again, as I indicated, the need for the intruding of the Congress is a respect of the liberties which we want to protect.

So I would ask my colleagues to yield to transparency, to yield to a shorter extension. Make this bill stand on its own two feet juxtaposed to the Constitution. While we mourn those who have fallen, we respect that this is a free country. Today, we are not acting on that freedom by giving up the congressional oversight that is necessary. I ask my colleagues to reject the present form of this bill. I beg the Senate to look more readily at a shorter extension and more transparency.

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I rise in opposition to the FISA Amendments Act of 2008. I believe that although we had a chance to discuss this reauthorization in the Judiciary Committee, the full import of this bill is too broad and more debate and consideration is necessary. The fact is not lost on me that this is the 11th year following the attacks of 9-11.

I open my statement with a quote from one of my heroines, and a trailblazer on so many levels, Barbara Jordan, who said: ``What the people want is very simple--they want an America as good as its promise.''

Over the past year, Senate and House Democrats have worked with their Republican counterparts, the Administration, the intelligence community, and privacy advocates to develop proposals for amendments to FISA that would give the intelligence community the flexibility it needs to safeguard our nation, while also providing strong protections for civil liberties. A proper balancing is America--as good as its promise.

And in-keeping with the notion of balance, I offered an amendment during the Judiciary Committee Markup of this legislation which simply asked for a report on the implementation of the amendments made by the FISA Amendments Act of 2008. My amendment simply requested that the report include an assessment of the impact of Section 702 of the FISA on the privacy of persons inside the United States. Even with court-approved targeting and minimization procedures in place, the government can and does intercept the communications of U.S. citizens.

It does so without a particularized warrant or a showing of probable cause. This approach to electronic surveillance raises concerns under the Fourth Amendment, which prohibits unreasonable searches, warrantless eavesdropping, and the use of ``general warrants.''

The Fourth Amendment to the U.S. Constitution provides a right ``of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'' Many of the government activities discussed in this report have the potential to constitute a search as that term is defined in Fourth Amendment jurisprudence.

Namely, government action constitutes a search when it intrudes upon a person's ``reasonable expectation of privacy,'' which requires both that an ``individual manifested a subjective expectation of privacy in the searched object'' and that ``society is willing to recognize that expectation as reasonable.''

The Fourth Amendment and its protections go back to our founding--the ability of the American Patriots to resist unwarranted searches and seizures by the British is inculcated in the American psyche.

Thus, the Fourth Amendment ultimately limits the government's ability to conduct a range of activities, such as physical searches of homes or offices and listening to phone conversations. As a general rule, the Fourth Amendment requires the government to demonstrate ``probable cause'' and obtain a warrant (unless a recognized warrant exception applies) before conducting a search.

This rule applies most clearly in criminal investigations. For example, an officer conducting a criminal investigation typically may not search a person's belongings without first obtaining a warrant that describes the property for which sufficient evidence justifies a search.

The extent to which the Fourth Amendment warrant requirement applies to the government's collection of information for intelligence gathering and other purposes unrelated to criminal investigations is unclear. Although the surveillance of wire or oral communications for criminal law enforcement purposes was held to be subject to the warrant requirement of the Fourth Amendment in 1967, neither the Supreme Court nor Congress sought to regulate the use of such surveillance for national security purposes at that time.

Several years later, the Supreme Court invalidated warrantless electronic surveillance of domestic organizations for national security purposes, but indicated that its conclusion might differ if the electronic surveillance targeted foreign powers or their agents. A lower court has since upheld the statutory scheme governing the gathering of foreign intelligence information against a Fourth Amendment challenge, despite an assumption that orders issued pursuant to the statute might not constitute ``warrants'' for Fourth Amendment purposes.

The Supreme Court has not yet directly addressed the issue. However, even if the warrant requirement was found not to apply to searches for foreign intelligence or national security purposes, such searches would presumably be subject to the general Fourth Amendment ``reasonableness'' test.

In the context of national security, the contours of the Fourth Amendment are necessarily narrowed but not abandoned altogether. The march toward a Big Brother State begins when the people's rights to privacy and to be free from surveillance are surrendered in toto. All we have to do is look at the recent Jones decision which concerned a purely domestic case in which law enforcement took advantage of high-tech tools to follow a suspected drug dealer. A conservative Roberts Court voted 9-0 to invalidate this search.

It is rare for liberal Democrats and conservative Republicans to agree on much of anything these days, but I am sure that many of my colleagues on the other side would find untargeted procedures under FISA unlawful and thereby unconstitutional. 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 need to be secure in our homes, secure in our thoughts, and secure in our communications.

It is widely known that the Obama Administration would like a clean, five year reauthorization of the FISA Amendments Act, consistent with the approach taken by the Senate Select Committee on Intelligence this spring. I would also note that there were two voices of dissent in the Senate committee's proceedings, Senators WYDEN and UDALL who have been champions of national security, privacy, and civil liberties--which are not mutually exclusive.

The FISA Amendments Act of 2008 was designed to provide critically important authority for the U.S. Intelligence Community to acquire foreign intelligence information by targeting foreign persons reasonably believed to be outside of the United States. However, our experts now tell us that there are serious issues with targeting procedures, disclosure of basic information and there is a lack of strong rules on how the information gathered can be used.

``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, had with the ill-conceived and now expired Protect America Act of 2007, was that the understandable temptation of national security agencies to engage in reverse targeting is difficult to resist in the absence of strong safeguards to prevent such unauthorized and blanket snooping.

Although Section 1881 of the FISA Amendments Act statutorily forbids such reverse targeting, it is a lingering concern of many civil libertarians which I share.

No doubt there are instances where it may be necessary to target persons within and outside the United States in order to address threats but Congress has made it clear that these exigencies must be subject to review at some point and time.

On the issue of targeting procedures, they were designed to ensure that only people reasonably believed to be outside of the U.S. would be targeted. However, in reality quite the contrary has taken place. There has been bulk collection of information without any targets whatsoever. Ensure transparency by conducting as much public oversight as possible, including releasing basic information about the program, such as the type of information collected and how many Americans and people in the U.S. it has affected.

It is also critical that Foreign Intelligence Surveillance Court opinions and administration interpretations of its authority to collect and use information under the FISA Amendment Act (FAA) become part of the public record and congressional debate.

On the issue of disclosure, there has been a lack of transparency on what type of information is being gathered, who is being picked up and what rights of Americans have been violated.

We must strike a balance between what constitutes ``classified'' information, and other compelling facts, disclosure of which do not threaten national security.

On the issue of rules, there has been a lack of rules that clearly define how the information is being used. The key is to amend the FISA Amendment Act to ensure that information collected under those programs can be used only in the narrowest of circumstances. The FAA's minimization procedures should be amended to ensure that this foreign intelligence warrantless surveillance program doesn't allow information to be repurposed for other government uses.

I understand that there must be a way for the intelligence community to gather vast amounts of information in a manner that makes sense. However, after carefully reviewing these proposals but suffice to say, I am still disturbed about certain aspects of the FISA Amendments of 2008. This Act was not designed for an overreach of power. It was designed to for the intelligence community to conduct meaningful information overseas.

Nearly two centuries ago, Alexis DeTocqueville, 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.

Thus, the way forward to victory in the War on Terror is for this 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. It is not easy for me or any Member of this House to go against the President's wishes on a matter of national security but I am convinced that more debate is necessary, and more consideration of what the FISA Amendments mean to national security and civil liberties.

We are in the throes of a national election for which the candidates have labored for over two years and the American people have seen, for better or worse, what they are about. Why so long: because that is Democracy. And civil liberties, Mr. Speaker, are the essence of the stew of our American Democracy.

I hope that Congress can maintain our oversight function to ensure that law enforcement is well aware of their limitations of surveillance balanced by a strong commitment to protecting this great nation from future harm, and limiting the reauthorization to 2015.


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