[Congressional Record: May 10, 2007 (House)]
[Page H4779-H4786]
PROVIDING FOR CONSIDERATION OF H.R. 2082, INTELLIGENCE AUTHORIZATION
ACT FOR FISCAL YEAR 2008
Mr. HASTINGS of Florida. Mr. Speaker, by direction of the Committee
on Rules, I call up House Resolution 388 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 388
Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 2082) to authorize appropriations for fiscal
year 2008 for intelligence and intelligence-related
activities of the United States Government, the Community
Management Account, and the Central Intelligence Agency
Retirement and Disability System, and for other purposes. The
first reading of the bill shall be dispensed with. All points
of order against consideration of the bill are waived except
those arising under clause 9 of rule XXI. General debate
shall be confined to the bill and shall not exceed one hour
equally divided and controlled by the chairman and ranking
minority member of the Permanent Select Committee on
Intelligence. After general debate the bill shall be
considered for amendment under the five-minute rule. It shall
be in order to consider as an original bill for the purpose
of amendment under the five-minute rule the amendment in the
nature of a substitute recommended by the Permanent Select
Committee on Intelligence now printed in the bill. The
committee amendment in the nature of a substitute shall be
considered as read. All points of order against the committee
amendment in the nature of a substitute are waived except
those arising under clause 9 of rule XXI. Notwithstanding
clause 11 of rule XVIII, no amendment to the committee
amendment in the nature of a substitute shall be in order
except those printed in the report of the Committee on Rules
accompanying this resolution. Each such amendment may be
offered only in the order printed in the report, may be
offered only by a Member designated in the report, shall be
considered as read, shall be debatable for the time specified
in the report equally divided and controlled by the proponent
and an opponent, shall not be subject to amendment, and shall
not be subject to a demand for division of the question in
the House or in the Committee of the Whole. All points of
order against such amendments are waived except those arising
under clause 9 or 10 of rule XXI. At the conclusion of
consideration of the bill for amendment the Committee shall
rise and report the bill to the House with such amendments as
may have been adopted. Any Member may demand a separate vote
in the House on any amendment adopted in the Committee of the
Whole to the bill or to the committee amendment in the nature
of a substitute. The previous question shall be considered as
ordered on the bill and amendments thereto to final passage
without intervening motion except one motion to recommit with
or without instructions.
Sec. 2. During consideration in the House of H.R. 2082
pursuant to this resolution, notwithstanding the operation of
the previous question, the Chair may postpone further
consideration of the bill to such time as may be designated
by the Speaker.
The SPEAKER pro tempore. The gentleman from Florida (Mr. Hastings) is
recognized for 1 hour.
{time} 1330
Mr. HASTINGS of Florida. Mr. Speaker, for the purpose of debate only,
I yield the customary 30 minutes to my friend from Washington (Mr.
Hastings). All time yielded during consideration of the rule is for
debate only.
[[Page H4780]]
General Leave
Mr. HASTINGS of Florida. Mr. Speaker, I ask unanimous consent that
all Members may have 5 legislative days in which to revise and extend
their remarks and insert extraneous materials into the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, as the Clerk just read, House Resolution 388 provides
for consideration of the Intelligence Authorization Act for Fiscal Year
2008 under a structured rule.
The rule makes in order a total of ten amendments, almost half of
which will be offered by Members of the minority, including one which
will be offered by the ranking member of the House Permanent Select
Committee on Intelligence, Representative Hoekstra.
The rule also makes in order an amendment that I offered, along with
my colleague on the Intelligence Committee, Representative Rogers of
Michigan, and our bipartisan amendment is a commonsense solution to
holding the Office of National Director of intelligence accountable for
its actions.
The House will have a chance to debate our amendment later today, and
I hope my colleagues will support it.
I would like to point out that Members who wish to do so, as the
Chair of the Intelligence Committee has pointed out previously, can go
to the Intelligence Committee office to examine the classified schedule
of authorizations for the programs and activities of the intelligence
and intelligence-related activities of the national and military
intelligence programs.
The importance of the intelligence community touches all Americans as
our Nation's first line of defense against increasing world threats.
Effective intelligence is the first method to protect our citizens and
prevent debacles like the war in Iraq.
The underlying legislation authorizes funding for all United States
intelligence agencies, including the national and military intelligence
programs. It is the largest intelligence authorization bill ever
considered by the House and takes significant steps to eliminate
duplication and ineffectiveness in our intelligence agencies.
The bill increases funding to improve human intelligence, training
and send additional intelligence analysts overseas to maximize their
abilities. It also requires additional intelligence reports on North
Korea and Iranian efforts to become nuclear capable. We also take
significant steps to improve the collecting, deciphering and
understanding of intelligence.
The effectiveness of our intelligence community is significantly
jeopardized when the diversity of the intelligence community does not
reflect the diverse world in which we live. Women and minorities
continue to be disproportionately underrepresented in the senior ranks
and the core mission areas of analysis, human intelligence collection,
and science and technology.
Simply put, we still do not have an intelligence community that looks
like our country or the world. Minorities make up 37 percent of the
American population, yet only 21 percent of the intelligence community,
and the numbers for African-Americans and Latinos is woefully below
that number. This is a problem that is addressed in the underlying
bill, which requires the development of a strategic plan to increase
diversity within the intelligence community and mandates increased
diversity among the rank and file of the community.
I am fond of saying in the Intelligence Committee hearings that it
doesn't take more degrees than the thermometer to be a spy, but
somebody back there decided that that must have been the case.
Another significant concern exacerbated by this lack of diversity is
a deficiency of linguist abilities in the intelligence community. There
are countless stories of intelligence tapes that had piled up in the
months leading up to September 11 when the terrorist attacks occurred
here. That was done because we didn't have anyone to translate them.
Experts and administrators lament the fact that we don't have enough
Arabic, Farsi, Urdu or Dari speakers, and we always go in that
direction, but we don't have enough Asian language speakers, either, in
the intelligence community and the military.
How can we expect to completely correct that course without
thoroughly modernizing the recruitment, selection and security
clearance processes to quickly bring on board people with these
critical skills? The underlying bill provides for the commonsense
modernization of our security clearance procedures to address this
growing problem, requiring that the system make more efficient use of
those who are proficient in foreign languages or with cultural,
linguistic or other subject matter expertise that is critical to
national security. We must make these necessary modernizations to adapt
to the ever-changing threats around us.
Finally, following the recommendations of 11 three- and four-star
generals, the bill requests that the National Intelligence Council
produce a National Intelligence Estimate on the national security
impact of global climate change. Some of my colleagues on the other
side of the aisle have expressed discontent with this provision,
because they believe that enough research is currently under way about
climate change. In doing so, in my judgment, they failed to recognize
that climate change is impacting global security.
Just look at the Middle East, the battle for scarce resources among
those who have been displaced, particularly in Iraq, has the potential
to generate sociopolitical environments that foster the creation of
terrorist cells. If we can't even agree on the implications of climate
change, it is obvious that more research is necessary, especially
observing the impact of climate change on the movement of people and
resources, and how that connects to terrorism.
Footnote right there, I pointed out in the Rules Committee that Iraq
would be the classic example of what I am talking about. There are 2
million refugees, and it is almost like it is kind of hidden, that are
displaced from their homes in Iraq. There are 400,000 to 500,000
internally displaced in Iraq. Yet, what we find is they are being
pushed into Syria, Jordan and Egypt where there are already significant
water resource problems. Someone tell me how that doesn't equate to an
environment where terrorists will be produced.
If we can't agree on this, I can assure you that we are going to have
significant problems in the future. Even the National Defense
University has recognized these implications by prioritizing response
to large-scale national disasters in some of its most recent training
simulations. As scientists explore the connection between such
disasters and climate change, it is imperative that the national
security implications of such events be thoroughly understood.
I am glad that our committee addresses this issue in the bill. If we
have learned anything from the failures of the war in Iraq, it is that
reliable intelligence is critical to ensuring America's national
security.
I am pleased to support this rule and urge my colleagues to do the
same.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. I want to thank the gentleman from
Florida (Mr. Hastings) for yielding me the customary 30 minutes, and I
yield myself as much time as I may consume.
(Mr. HASTINGS of Washington asked and was given permission to revise
and extend his remarks.)
Mr. HASTINGS of Washington. Mr. Speaker, I rise today in opposition
to this restrictive rule.
The Intelligence Authorization Act generally receives strong
bipartisan support. But let me be clear that the underlying bill does
contain bipartisan provisions that are important to protecting our
national security, make no bones about that.
However, the bill also contains a number of provisions that are of
concern and could weaken our national security and intelligence
capabilities by providing less than adequate resources and placing
restrictions on our intelligence operations.
I am concerned that the Democratic leadership chose to include
section 407 in the underlying bill. My friend from Florida talked at
length about that provision, which would require our Nation's
intelligence community to direct
[[Page H4781]]
its limited resources to a National Intelligence Estimate on global
climate change.
I have to ask, what message are we sending to our allies and our
enemies when Congress instructs our intelligence experts to stop what
they are doing on issues that threaten American lives and, instead,
focus on theoretical risks from global warming.
Furthermore, earlier this year, this House created a new Select
Committee on Energy Independence and Global Warming to focus on the
risks of global warming. This is in addition to several Federal
agencies that are already analyzing climate change. Congress should let
this panel that was created, and existing Federal agencies, focus on
climate change so that our intelligence analysts can focus on materials
of classified information and work to prevent threats against American
lives.
But I am pleased, I have to say, with the Rules Committee last night
because they made in order an amendment to be offered by the ranking
member, Mr. Hoekstra, of the Permanent Select Committee on
Intelligence, that will strike section 407 and allow our spies to be
spies. I think we can have a very good debate on that. I think we ought
to have that debate. I am pleased that the Rules Committee made that
amendment in order.
However, the Democratic leadership did deny several thoughtful
amendments offered by Mr. Castle, Mr. Flake, Mr. Rogers of Michigan and
Mrs. Wilson of New Mexico.
I urge my colleagues to oppose this restrictive rule, which only
allows 10 out of 433 Members of the House to offer their ideas on how
to better strengthen our intelligence community.
Mr. Speaker, I reserve the balance of my time.
{time} 1345
Mr. HASTINGS of Florida. At this time, I am very pleased to yield 2
minutes to the distinguished chairman of the Permanent Select Committee
on Intelligence, my good friend from Texas (Mr. Reyes).
Mr. REYES. Mr. Speaker, I thank my colleague and good friend from
Florida for yielding me time on this very important rule.
I rise in support of this rule. The terrorist plot that was recently
uncovered in New Jersey this past week shows that we cannot let our
guard down in the effort to learn the plans and intentions of people
who would do us grave harm.
The underlying bill, H.R. 2082, provides funding for the brave women
and men of our intelligence community. I have visited with them in
every corner of the world, and I am constantly amazed by their
patriotism, their dedication to mission, and their commitment to doing
our Nation's most sensitive and dangerous business, often without
public acknowledgement or recognition.
Today, the United States faces a dynamic set of threats, challenges,
and opportunities. We are at war in Iraq and Afghanistan. We face a
growing terrorist threat. Countries like Iran and North Korea are
working towards a nuclear bomb. And we face a number of other key
challenges in Africa, Latin America, and from rising powers like Russia
and China. These major challenges require a major effort by our
government to collect, to analyze, and to disseminate intelligence, and
to do so within the legal bounds of our Constitution and our national
values.
This bill invests in human intelligence. It invests in analysis and
analysts. It funds key counterterrorism operations and sensitive
collection programs. And it improves critical oversight in key areas
such as the overuse of contractors and the lack of qualified linguists
in the intelligence business.
This bill was developed on a bipartisan basis. And although there may
not be agreement on every single point, there is agreement on all the
major points. This rule will allow a full debate on many of the key
issues before us, and I, along with my colleagues, should welcome this
debate. So I urge my colleagues to vote ``yes'' on the rule.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 6
minutes to the gentlelady from New Mexico, a member of the Intelligence
Committee, Mrs. Wilson.
(Mrs. WILSON of New Mexico asked and was given permission to revise
and extend her remarks.)
Mrs. WILSON of New Mexico. Mr. Speaker, I am here to urge my
colleagues to oppose the rule and to oppose the previous question on
the rule for the Intelligence authorization bill today.
I offered an amendment in the Rules Committee that was similar to one
that I offered in the Intelligence Committee that would modernize our
foreign intelligence surveillance laws so that we can listen to the
terrorists trying to kill us, while protecting Americans' civil
liberties.
Every member of the House Intelligence Committee knows that the
Foreign Intelligence Surveillance Act is not working, and so does the
Speaker of the House. In fact, she has been briefed on this earlier
than any of us have, since shortly after 9/11.
Last week, in unclassified session in front of the Senate
Intelligence Committee, Admiral Mike McConnell, the Director of
National Intelligence, urged the Congress to modernize our intelligence
surveillance laws. He told us and the world, ``We are actually missing
a significant portion of what we should be getting.'' We are missing a
significant portion of what we should be getting.
In January of this year, the Attorney General of the United States
wrote to the Congress and said there were new Foreign Intelligence
Surveillance Court orders that were innovative, that would put the
President's terrorist surveillance program underneath the auspices of a
judge in the Foreign Intelligence Surveillance Court. They are
innovative, because the court is stretching the law like a twin sheet
over a king-sized bed. And every member of the Intelligence Committee
knows just how fragile the legal framework is in this arrangement. Yet,
a single judge in a nonadversarial secret setting has said it is okay
to go forward on this basis because it is important to the country, and
the Congress has failed to act. Will the next judge go along?
Every one of us knows there is a problem. Here is the problem:
In 1978, almost all local calls were on wire and almost all long
distance calls were transmitted by microwave over the air. The FISA law
distinguishes between collection over a wire and collection over the
air. You don't need a FISA warrant to collect signals over the air. And
that is where long-haul communications were in 1978.
Now, in 21st-century communications, the situation is completely
reversed. Most long-haul communications are on wire and most local
calls are over the air. 230 million Americans have cell phones, but the
FISA law we operate under is stuck in the 1970s, while we are trying to
protect this country from terrorists who are exploiting the 21st-
century technology that was invented by this great country. We are
tying the hands of our intelligence agencies while our enemies are
using these communication systems to plot to kill Americans.
But the rule is even worse than that. The committee has ruled in
order an amendment by Mr. Flake and Mr. Schiff that insists, insists
that our intelligence agencies must use this outdated 1978 law. What do
you think the FISA judges are going to think when they see that pass
the House of Representatives?
We are actually missing a significant portion of what we should be
getting. What did we miss today? What are the terrorists plotting
today? What are they talking about that is flowing over the wires that
America built today? Who is going to die tomorrow because you won't let
our Intelligence Committees listen to the foreign communications on a
wire and you will not allow a debate on this floor on this very
important issue?
I pray to God that we don't need another 9/11 Commission to look at
what our failures were in intelligence. Because if we have to look at
failures, if we have to look at whether we should have done something
when we had a chance, then mark this vote on this day in history, when
the Democrat majority in this House chose to tie our hands in the face
of a determined enemy.
If we defeat the previous question on this rule, we will offer the
amendment to modernize our intelligence surveillance laws to update
them for 21st-century technology. A vote in favor of the
[[Page H4782]]
previous question on this rule is a vote to keep the FISA law frozen in
time in 1978, while our enemies use 21st-century communications to plot
to kill Americans.
I urge my colleagues to vote ``no'' on the previous question and
``no'' on the rule.
Mr. Speaker, I urge my colleagues to oppose the Rule for debate and
the previous question on the Intelligence Authorization Bill today.
This vote is more important than most procedural things we do around
here.
I offered an amendment in the Rules Committee that would modernize
our Foreign Intelligence Surveillance Laws so that we can listen to the
terrorists trying to kill us and protect the civil liberties of
Americans.
Every member of the House Intelligence Committee knows that the FISA
law is not working, and so does the Speaker of the House. She has been
briefed on these matters since shortly after 9/11--long before any of
us were.
Last week, in unclassified session in front of the Senate
Intelligence Committee, Admiral Mike McConnell, the Director of
National Intelligence urged the Congress to modernize this law. He told
us and the world, ``We are actually missing a significant portion of
what we should be getting.''
In classified session, the details of the problems are even worse.
On January 17, 2007 the Attorney General told the Congress that there
were new Foreign Intelligence Surveillance Court orders that are
``innovative''.
They are ``innovative'' because the court is stretching the law like
a twin sized sheet to cover a king sized bed.
And every member of the Intelligence Committee knows just how fragile
this legal arrangement is.
Yet, a single judge in a non-adversarial secret session allowed it is
important to the security of the country and because the Congress has
failed to act.
Will the next judge continue to stretch the law?
The Problem
In 1978 almost all local calls were on wire and almost all long-haul
calls were over the air.
The FISA law distinguishes between collection on a wire and
collection out of the air.
You don't need a FISA warrant to collect foreign intelligence over
the air.
Now, in 21st century communications, the situation is completely
reverse.
Most long-haul communications are on a wire and local calls are in
the air.
But the calls we want, for foreign intelligence information, are on
the wires and fiber optic cables.
The FISA law we operate under is stuck in the 1970s while we are
trying to protect this country from enemies that use 21st century
communications.
We're tying the hands of our intelligence agencies while our enemies
are using the communications systems we built to plot to kill us.
But It Gets Worse
But the rule is even worse than that.
The committee has ruled in order an amendment by Mr. Flake and Mr.
Schiff that says our agencies must use this outdated 1978 law.
The Democrat leadership will insist that we turn our backs on 21st
century terrorists, using 21st century communications and pretend we
can be frozen in a 1978 world.
``We are actually missing a significant portion of what we should be
getting,'' said our Director of National Intelligence.
What did we miss today?
What are the terrorists plotting today?
Who is going to die tomorrow because you won't let our intelligence
agencies listen to foreign communications on a wire?
I pray to God we never need another ``9/11 Commission'' that looks at
how we failed to protect ourselves when we could have done something.
If we do, mark this vote, this day in history, when the Democrat
majority in this House chose to tie our hands in the face of a
determined enemy.
A vote in favor of the previous question on this rule is a vote to
keep the FISA law frozen in time in 1978 while our enemies use 21st
century communications to plot to kill Americans.
I urge my colleagues to vote ``no'' on the previous question and
``no'' on the rule.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 5
minutes to the distinguished gentlewoman from California, my friend Ms.
Harman, who is the previous ranking member of the Select Committee on
Intelligence, and is a member of the newly appointed Special
Intelligence Oversight Panel.
Ms. HARMAN. Mr. Speaker, I thank Mr. Hastings for yielding to me and
commend him for his continued service both on the Intelligence
Committee and on the Rules Committee.
As you heard, I served the past 8 years on the Intelligence
Committee, the last 4 as ranking member. I loved that opportunity, and
I remain passionate about the issues. I believe that there is nothing
more central to our roles in Congress than to keep our country safe.
And that committee has crucial jurisdiction.
I would respectfully disagree with the comments of the last speaker,
Mrs. Wilson. I have been briefed longer than she has on how the so-
called NSA program operates. I believed then and I believe now that it
can and must fully comply with FISA, a law that has been modernized 12
times since 9/11 through changes we have made which I supported in the
PATRIOT Act.
Mr. Speaker, I rise in support of the rule and of H.R. 2082. In my
current role as Chair of the Homeland Security Intelligence Information
Sharing and Terrorism Risk Assessment Subcommittee, I continue to
review intelligence reports and to talk to our key security
professionals. And, Mr. Speaker, I am concerned. We have surged our
intelligence resources into Iraq, where they are necessarily focused on
the tactical needs of warfighters. Meanwhile, al Qaeda has gained
strength and is inspiring new cells worldwide. We have taken our eye
off the ball. That ball is al Qaeda.
Mr. Speaker, we should all be worried that terrorist cells are here
in the United States, right now, waiting for the right moment to
strike. We have yet to develop a truly effective system for sharing
time-sensitive intelligence about terror plots with first responders,
whom I would like to believe could be first preventers.
Even at the Federal level, a variety of data bases, classifications,
and pseudo-classification systems could still, 5\1/2\ years after 9/11,
prevent us from connecting the dots. We have yet to develop an adequate
strategy to counter radicalization in our prisons and in our
communities. The events at Cherry Hill, New Jersey, earlier this week
are the latest example. And we have not yet broken into the inner
circle of the senior al Qaeda leadership even though we have been at
this for more than 5 years. These problems are urgent as we could be
attacked at any time.
I recently reviewed the classified annex to this bill and continue to
pay special attention to our technical satellite programs. Changes to
these programs cannot be discussed in an unclassified setting such as
this; but I want to reiterate my long-held view that the women and men
who build these systems constitute a major strategic asset of the
United States. Rocket scientists do not grow on trees, and we must keep
them highly trained and highly motivated. Without their help, we could
literally lose our ability to see, hear, and communicate.
Finally, I strongly support the effort to develop a National
Intelligence Estimate on climate change. Changes in our climate will
affect critical resources such as water, food, and arable land, as we
are seeing now in Darfur and in many parts of Africa. Droughts affect
the stability of governments, and the stability of governments is one
of the key things we need to know about through our intelligence. This
isn't bugs and bunnies, or even Bugs Bunny. It is survival or
destruction. And if we make responsible moves now, our grandchildren
will benefit.
Mr. Speaker, by supporting this legislation, the Congress stands with
the extraordinary women and men of our intelligence community who often
serve in austere locations on unaccompanied assignments. I am one of
the few here who know these people and know where they serve. I say to
them, our Nation owes you our gratitude; hopefully, this bill provides
the support and tools you need as well as honors your sacrifice.
I urge support of the rule. I urge support of the underlying
legislation, and I thank the gentleman for yielding to me.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3
minutes to the gentleman from Delaware (Mr. Castle).
Mr. CASTLE. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise in opposition to H. Res. 388, the rule for
consideration of the fiscal year 2008 Intelligence Authorization Act.
[[Page H4783]]
As a former member of the House Select Committee on Intelligence, I
strongly believe we must enact all of the 9/11 Commission's
intelligence recommendations, even those that apply to our own
congressional committees.
In its final report, the 9/11 Commission concluded that: ``Of all our
recommendations, strengthening congressional oversight may be among the
most difficult and important. So long as oversight is governed by the
current congressional rules and resolutions, we believe the American
people will not get the security they want and need.''
The bipartisan 9/11 Commission Report and the subsequent 9/11 Public
Disclosure Project recommended three alternatives for reforming
congressional oversight of intelligence. These options include: one,
establishing a Joint Committee on Intelligence modeled after the old
Joint Committee on Atomic Energy; two, establishing House and Senate
Committees on Intelligence with authorizing and appropriating
authority; or, three, establishes a new Appropriations Subcommittee on
Intelligence.
{time} 1400
In the wake of the terrorist attacks of 2001, Congress enacted a
large majority of the Commission's recommendations. However, as it
turns out, it has been those recommendations that apply directly to the
tangled rules and procedures here in the United States Congress that
have been left unfinished.
Earlier this year the Democratic leadership attempted to apply a
Band-Aid to this problem by creating a powerless Intelligence Oversight
Panel that has very little control over actual funding decisions. This
is clearly not what the 9/11 Commission recommended. In fact, its
report plainly states that, ``tinkering with the existing committee
structure is not sufficient.''
This week I offered a simple amendment to the bill before us, calling
for a sense of Congress that this House should act to implement these
crucial 9/11 recommendations, but it was denied under this rule.
Mr. Speaker, the American people have insisted that we implement all
of these important recommendations, even those that are difficult. We
will be doing this country a disservice until we put in place an
effective committee structure capable of giving our national
intelligence agencies the oversight, support and leadership they need.
I urge the defeat of the rule.
Mr. HASTINGS of Florida. Mr. Speaker, would you be so kind as to
inform each side of the remaining amount of time?
The SPEAKER pro tempore. The gentleman from Florida has 14\1/2\
minutes, and the gentleman from Washington has 19 minutes.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased at this time
to yield 4 minutes to my good friend from New Jersey, with whom I serve
on the Select Committee on Intelligence, and he is the Chair of the
Special Intelligence Oversight Panel, Mr. Holt.
Mr. HOLT. Mr. Speaker, I thank my friend and colleague from Florida.
It is indeed a pleasure and an education to serve with him on the
Intelligence Committee.
And I rise today in support of this rule and the underlying bill.
Although this bill is not the full reform that I think is needed, it
does contain many features that, if enacted, will improve the operation
and oversight of the intelligence community.
I'd like to address one amendment that has been made in order, and I
thank the Rules Committee for accepting for consideration an amendment
that I offer that seeks to address an issue that's been one of the
highest concerns for both this committee and the Congress, and that is,
protecting the security and the cover of intelligence officers.
This grows out, in part, of the well publicized outing of a former
CIA officer. For nearly 4 years, I have led the effort within the
committee and in this body to determine the facts surrounding this
case, as well as its consequences for the security of our Nation.
In previous Congresses, on eight separate occasions, in committee and
on this floor, the then majority voted down every effort to obtain
information on the matter. As I repeatedly noted at the time, Mr.
Fitzgerald's criminal inquiry could never address some of the key
questions that we sought to have answers for.
For example, how and why did Ms. Plame's cover status become known to
those with no legitimate need to know?
How much damage was done to our intelligence collection efforts as a
result of the outing of Ms. Plame?
What measures has the CIA and has the now Director of National
Intelligence taken to prevent similar compromises in the future?
We still need answers to these and other questions. The amendment I
am offering today that I will offer, would require the President,
through the Director of National Intelligence, to report annually to
the Congress on the need for any modification to the Intelligence
Identities Protection Act to improve the legal protections for covert
agents. This report, along with other oversight that the committee will
undertake, and that I hope to undertake through the Select Intelligence
Oversight Panel, will help us establish exactly what measures need to
be taken to minimize the chances of such compromises of the identities
of covert operatives in the future.
These men and women take enormous risks on our behalf. We owe it to
them to ensure their identities are protected from the exposure, both
from hostile intelligence services but even from those within our own
government who would seek to retaliate against them for speaking truth
to power.
This reporting requirement would be an amended version of what the
President is already required to do, but has failed to do every year.
We seek to have the President show more diligence in protecting the
cover of these employees.
Let me reiterate that this amendment represents only one step in the
process. The chairman of the committee has assured me that there will
be oversight and legislative action on this issue in addition to that
which we are taking today.
I would also like to comment that it is astonishing in the debates
leading up to this in committee and here on the floor today that there
would be so much attention being paid to the request for a national
intelligence estimate on climate change. A preliminary assessment is
already in the works. We should want the intelligence community to be
considering everything that affects our national security, be it
demographics or climate or droughts. I am astonished that there would
be any resistance to having such a national intelligence estimate. So I
am pleased that the committee has put that in this bill, and I look
forward to its passage.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3
minutes to the gentleman from Florida (Mr. Weldon).
Mr. WELDON of Florida. Mr. Speaker, I thank the gentleman for
yielding.
I rise to commend the majority for including, under the rule, the
amendment that will be offered later by Mr. Hoekstra, the ranking
minority member, former chairman of the committee, to strike section
407 of the bill. This is the section of the bill that so many people
have commented on so far today that will now task our national
intelligence resources to start looking at the issue of climate change.
To me there is a great irony in this happening here today because for
many years we have heard criticism from Democrats over and over again
on the so-called inefficiencies, inadequacies of our national
intelligence capabilities, specially as it related to WMD in Iraq and
their failure to get an accurate picture of that. And now we see today
an expansion of their duties and responsibilities.
I believe most Americans look for our intelligence agencies not to be
engaged on the issue of climate change but more directly to be involved
in the business of protecting American safety and security, protecting
our national assets, protecting the American people.
Furthermore, one of the other things that strikes me as greatly
ironic about this is, we have an extensive array of Federal agencies
currently studying this issue. We have NOAA, the National Oceanic and
Atmospheric Administration, which has a wide array of satellites and
scientists that are constantly studying both short-term and
[[Page H4784]]
long-term implications of climate change.
We have, additionally, NASA engaged on this issue, with three major
Earth-observing satellites on orbit studying the issue of the Earth's
climate.
And as well, there are multiple programs run by the National Science
Foundation; they have the Geosciences Directorate (GEO), the Office of
Polar Programs (OPP), the Atmospheric Science Subactivity, the ATM.
And, ladies and gentlemen, I haven't even touched on the EPA and all
the work that they are doing on this issue.
To me, this issue is controversial. There is a sizeable number of
Americans who feel that the severity of the problem of climate change
does not justify some of the extreme actions that many people in the
radical environmental community are trying to propose today, and I just
can't help but feel this is a political issue to try to hijack our
intelligence assets to get them on the global warming bandwagon so we
could have draconian changes in American policy that could adversely
affect our economy and our Nation.
So I thank the majority for putting the Hoekstra amendment in order.
Mr. Hoekstra, the former chairman, now ranking member, is very
knowledgeable on intelligence policy.
I intend on supporting the Hoekstra amendment. I encourage all my
colleagues to listen carefully to that debate.
Mr. HASTINGS of Florida. Mr. Speaker, I now yield 2\1/2\ minutes to
the gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. I appreciate the gentleman's courtesy in extending
time.
I, too, am perplexed by the debate that is being advanced in terms of
being able to focus on the national security implications of the threat
of global warming. I sat on the committee, the Special Committee on
Global Warming and Energy Independence, as we listened to three and
four star admirals and generals, as we listened to the former head of
the CIA talking about the defense implications for the United States of
Global Warming.
These men were not radical environmentalists. These are respected
experts who have led a lifetime of service to protecting the integrity,
the defense, the security of the United States. They are deeply
concerned that our dependence on foreign oil from unstable areas of the
world. The overwhelming scientific consensus that climate change,
global warming is a reality, led them to argue in the most strong terms
that we need to be serious about it. Item after item, about the
strategic implications, about what happens to defenses of the United
States, to instability around the world of water-stressed areas, to new
disease patterns, these are not arcane, philosophical issues. This
isn't environmental fringe. This is the nuts, and bolts of the future,
of our country.
It has already been made clear that we already have a great deal of
work that is underway. What this would require is assembling it under
the guise and guidance of people who are experts in national security
to put it in the national security context.
Other major countries around the world are grappling with this. I
think the Rules Committee was entirely appropriate to put what I think
is a misguided amendment on the floor because I think it is time for
people who care about the future of the country, who are looking at the
evidence, to have an honest and thoughtful debate.
But to somehow dismiss this as the province of radical
environmentalism or a detraction from the hard work of planning for
America's security future is, I think, sadly misplaced.
I appreciate what the Rules Committee has done. I support the rule
and look forward to the debate later.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5
minutes to the gentleman from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Speaker, we have a process here with regard to
legislation and how it moves through the Congress. In particular, the
rules were changed in January, some very welcome changes to the rules
with regard to earmarks.
We said that if you are going to have an earmark in a bill, or in a
report, that you need to state that you do not have a financial
interest in that earmark, and then you need to submit that earmark, or
it has to be submitted with the report so that Members can actually see
that and see that there is no financial interest, see if it has merit
or warrant.
This process is not being followed here. We were told initially that
there were no earmarks in the bill, and then those of us who went up to
view the classified annex did not see a list. There was no list
available there. We were told later that it was with the Clerk's
Office. Then with the Parliamentarians.
It turned out that we finally did get the list, and here it is, 26
earmarks in the bill. But the list was not made public. It was not
given to us until 5 hours after the deadline that the Rules Committee
had established to submit your amendments.
So somebody who wanted to amend the bill or actually challenge or to
highlight or to discuss the earmarks that are mentioned here and listed
here did not have an opportunity to craft an amendment.
Again, this list was received, it was made public 5 hours after the
Rules Committee already shut down the amendment process. This rule
cannot go forward like this. We cannot continue to do business like
this.
{time} 1415
We all know the problems that we have had with the appropriations
process with the earmarking, the scandals that have gone on. The
earmarking process is secretive enough, it seems, in the Congress
without adding the layer of the Intelligence Committee. Then there are
things that you can't even discuss on the floor, that we can't discuss
openly; so it makes it even more difficult.
Members need not be reminded that Duke Cunningham now sits in prison
because of earmarks he largely got in the intelligence process, in the
Intelligence Committee. We cannot allow that to happen again. We have
to have a process that makes sure that that cannot happen. And that
process is not happening right now, when you don't get lists until long
after the process, when you can't challenge them on the floor. And then
we have the problem here in open session where you can't even challenge
the earmark and talk about what the earmark is actually about because
you are in open session and you might be talking about classified
things.
So for that reason I am announcing now that I will offer a motion to
move into secret session after these votes are concluded.
Let me just remind the Members, if you want a process where you know
what is going on, we have to move into secret session. If you vote
against the motion to go into secret session, you are, in essence,
saying let's just let it go; I don't care what is in there.
I would challenge those who want to see what is going on to go up and
view the classified annex. You may or may not be able to find out what
these earmarks are about. But with this process, the way it is, we will
never know, and we can't continue this.
I applauded the majority's move to new earmark rules in January. They
were, I felt, stronger than what we did when we were in the majority. I
think they should have been stronger, but they were better than what we
did, and I said so. But we aren't following those rules.
We have already highlighted a few times that if the majority submits
a list of earmarks, incomplete or complete, or simply states there are
no earmarks in a bill, there is no parliamentary recourse for the
minority or for anyone on the floor. We have to accept at face value
that there are no earmarks or that the list is complete. That is wrong.
That is something that has to change.
But when we are dealing with the Intelligence Committee on something
this important, we can't let this process go forward without adopting
some of the reforms that we have said that we are going to adopt.
So for that reason I will offer a motion for a secret session at the
appropriate time, and I would urge a vote against this rule.
Mr. HASTINGS of Florida. Mr. Speaker, I say through the Chair to my
friend from Washington that I thought that we were having our last
speakers
[[Page H4785]]
but I didn't know the nature and substance of his last speaker's
remarks toward that end.
Mr. Speaker, I yield 4 minutes now to the distinguished Chair of the
Select Committee on Intelligence, who has comments regarding Mr.
Flake's comments.
Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
I just wanted to assure my friend and colleague from Arizona that,
being sensitive to the issues that he mentioned about one of our former
colleagues that, regrettably, now sits in prison, the Intelligence
Committee worked very closely with the Parliamentarians, the Committee
on Standards and Official Conduct, and other committees of the House on
earmark disclosures.
I am at a loss as to who informed the gentleman that there would be
no earmarks, but I think the gentleman now knows that the Government
Printing Office made an error in omitting the earmarks and that is why
the delay in putting them up on their Web site.
Be that as it may, this committee followed the requirements of the
House for each Member receiving an earmark to certify that neither he
or she nor his or her spouse would benefit financially from any kind of
action. We complied with all the requirements, all the rules, and all
the regulations.
As I said, we did this in a very transparent and bipartisan way
because we did not want to leave any impressions that things were not
done according to the rules that had been set out. Everything that we
did with this process followed the rules and the process. Where the
glitch came was where the printing was done. There was an error
committed by the Government Printing Office, and that is why there was
a delay in posting the earmarks.
Again, I am at a loss as to who informed the gentleman that there
were no earmarks, because it certainly wasn't anyone from the committee
that I am aware of.
Mr. FLAKE. Mr. Speaker, will the gentleman yield?
Mr. REYES. I would be glad to yield to the gentleman.
Mr. FLAKE. Mr. Speaker, I believe the requirement in the House rules
is that the report be filed 72 hours before it is brought up. Actually,
those of us who went up to view the classified annex, I asked for the
list, if there was a list of earmarks, and I was told there was none.
Mr. REYES. Reclaiming my time just to explain to you that our process
in the committee is that you would be provided support from the
Republican staff.
If they misinformed the gentleman about the issue of earmarks, I
don't know why they would do that because clearly staff on both sides
knew that there were earmarks.
I will continue to yield.
Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding.
Yes, I reviewed and asked during that time if there were. I would say
if it is the case that a computer glitch led to no printing of the
list, then you would think that the Rules Committee would say, okay,
maybe we should move the process back and allow Members to offer
amendments on specific earmarks.
Mr. REYES. Mr. Speaker, reclaiming my time, it is my understanding
that the gentleman was offered an opportunity to do that and rejected
it.
Mr. FLAKE. An unspecified opportunity. If the gentleman will continue
to yield, Mr. Speaker, I actually offered an amendment that was
rejected by the Rules Committee just encompassing all earmarks that
might be in the bill because I wasn't given a list. I had no idea if
there were any earmarks. And that was rejected.
The problem we have here in open session and the reason I will be
calling to move into secret session is that in open session it is
difficult to actually discuss what the earmark might be about.
Mr. REYES. I am being again reassured by staff, reclaiming my time,
Mr. Speaker, that the gentleman was offered, less than an hour ago,
unanimous consent to allow him to have an amendment.
Mr. HASTINGS of Washington. Mr. Speaker, I yield 4 minutes to the
gentleman from Arizona.
Mr. FLAKE. Mr. Speaker, what I was offered about 30 minutes ago was
an opportunity to offer perhaps a few amendments with regard to
specific earmarks. It was never clear how many amendments I would be
allowed to offer or on which of these earmarks. Until that is
clarified, there is no reason to move forward.
And, also, let me point out again unless you are in secret session,
you can't discuss exactly what the earmark might be about; so you might
run afoul of any statements that you have signed or any confidentiality
agreements that we are under in terms of classified information. And
when I actually went up with the list to look at the classified annex
again and pointed at certain earmarks, I was told that we are not sure
what that was about. That was requested by a Member who is not on the
committee. We don't know. And until we can have that Member actually
stand up and be able to say what that earmark is about, whether it goes
to a private company, whether it goes to an agency, we just don't know.
Mr. REYES. Mr. Speaker, will the gentleman yield?
Mr. FLAKE. Yes.
Mr. REYES. Mr. Speaker, let me again reassure the gentleman that
every single earmark here followed the House rules. Every Member that
has an earmark certified, like every Member is required to in the
House, that they had no specific interest, that the spouse had no
specific interest with the company or companies where the money was
going.
Mr. FLAKE. I don't sit on the Intelligence Committee; so there may be
some disagreement there about whether the ranking member was informed
or not, and I think that will probably come to light later.
But in this case, if we had followed the rules, we would have had the
list before the Rules Committee shut down the amendment process because
you need to be able to offer amendments on specific earmarks. And in
this case, unless a Member can go up and view the classified annex and
come away with an assurance or some kind of comfort level that the
earmark under question is for the intended purpose or it should be in
the intelligence bill, then we are at a loss when we come to vote. I
think our constituents expect us to be informed, and when we can't even
go up and view the classified annex and be informed, then there is a
problem.
Mr. REYES. Will the gentleman yield?
Mr. FLAKE. Yes, I will yield.
Mr. REYES. Once again, Mr. Speaker, let me reassure my good friend
and colleague from Arizona that the report, along with all the listing
of earmarks, was filed appropriately, timely with the Rules Committee.
Where the glitch occurred was in the printing.
But be that as it may, I want to tell you again, reassure you, that
we did not handle the process in the Intelligence Committee any
different than any other committee in the House, and I would hope the
gentleman would understand that.
Mr. FLAKE. My office has a timeline, actually, if anyone is
interested, and when we requested the list of earmarks, when we finally
got it, what we were told by which office, and I can tell you this is
no way to run a process, particularly given the recent history of
problems that we have had in this regard. And that is why I am
concerned, and that is why I feel we can't do that in an open session
like this. We have to go to secret session.
Mr. HASTINGS of Florida. Will the gentleman yield?
Mr. FLAKE. Yes, I will.
Mr. HASTINGS of Florida. Mr. Speaker, does the gentleman have now an
amendment prepared that he is ready to offer?
Perhaps it would be that we could ask unanimous consent that your
amendment be allowed to go forward.
Mr. FLAKE. Reclaiming my time, I would not, given that I cannot
discuss some of what I need to discuss in open session, given what has
transpired. I don't think that we can. That is why we need a closed
session.
I will offer the motion, and if you don't feel that we need to go
into closed session, then you can vote against it.
Mr. HASTINGS of Florida. Mr. Speaker, I reserve the balance of my
time.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance
of my time.
Mr. Speaker, I will be asking for a ``no'' vote on the previous
question so
[[Page H4786]]
that I can amend this rule to allow the House to consider an amendment
offered by Representative Heather Wilson of New Mexico and provide the
appropriate waivers for that amendment.
The Wilson amendment would modernize the Foreign Intelligence
Surveillance Act to enhance the ability of our Nation to protect itself
in times of war and elevated national security threats. And I think
that point was made very, very eloquently by the gentlewoman from New
Mexico.
Yesterday, the Rules Committee met and rejected on a party-line vote
the Wilson amendment.
Mr. Speaker, I want to advise my friend from Florida that I just got
a request for time here, and that is being discussed right now, that I
was not aware of.
Mr. Speaker, how much time do I have remaining?
The SPEAKER pro tempore. The gentleman from Washington has 7\1/2\
minutes remaining. The gentleman from Florida has 4 minutes remaining.
Mr. HASTINGS of Florida. Mr. Speaker, I continue to reserve the
balance of my time.
[Congressional Record: May 10, 2007 (House)]
[Page H4787-H4794]
[[Page H4787]]
House of Representatives
PROVIDING FOR CONSIDERATION OF H.R. 2082, INTELLIGENCE AUTHORIZATION
ACT FOR FISCAL YEAR 2008--Continued
{time} 1430
Mr. HASTINGS of Washington. Let me say, then, Mr. Speaker, I will be
asking for my colleagues to defeat the previous question so we will
have an opportunity to vote on the merits of this amendment.
Mr. Speaker, I ask unanimous consent to insert the text of the
amendment and extraneous material immediately prior to the vote on the
previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Washington?
There was no objection.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 6
minutes to the ranking member of the Intelligence Committee (Mr.
Hoekstra).
Mr. HOEKSTRA. I thank the gentleman for yielding.
Mr. Speaker, I just need to clarify that the process that was used
for the earmarks on this bill did not follow all of the rules that we
had agreed upon in the committee and perhaps inconsistent with the
Rules of the House. But I do know that they were inconsistent with the
agreement that we have in the Intelligence Committee, which is that on
a bipartisan basis the chairman and the ranking member would review
earmarks, their content, the Member, and would sign off on the
appropriateness of each of those earmarks.
With the filing of the bill to the Rules Committee, there was at
least one earmark that was never brought to my attention and for which
I never received a copy of the request from the Member identifying the
earmark or a statement from the Member indicating that there was no
financial interest along with the earmark. Now, that does not say the
earmark is bad. It does not say it was wrong. It is just a process foul
in terms of what we had agreed to.
Mr. REYES. Will the gentleman yield?
Mr. HOEKSTRA. I yield to the chairman.
Mr. REYES. I thank you for yielding, because one of the fundamental
points I want to make is that we wanted to err on the side of
transparency. Staff tells me that the issue of that particular earmark,
weeks before we marked up the bill, was fully discussed on a bipartisan
basis. I know it was discussed when we marked it up because there were
a number of amendments that were brought to the markup.
Mr. HOEKSTRA. It is clear that there may be some confusion as to
exactly what was or what was not discussed, but the process between
staff, the process that is outlined in the committee is clearly that
the chairman and the ranking member will go through and review those
items that are identified as earmarks, and we will agree on them, and
we will agree upon their inclusion in the bill.
The bill that was submitted and filed with Rules had at least one, I
don't know about the full details, but had at least one earmark that
the chairman and myself never discussed and also that, as a ranking
member, I had never received what would have been identified as the
paperwork that went along with it. The chairman knows that that
particular earmark was one that was not discussed as an earmark. I
don't think the inclusion and the identification of it as being an
earmark in committee when we debated this specific provision was
brought up.
And so it is a cause of concern. And building on what happened with
my colleague from Arizona (Mr. Flake), where the Rules Committee did
not identify the earmarks that were part of that bill until 5 hours
after the deadline for the Rules Committee, for Members to submit
amendments.
Mr. REYES. Will the gentleman yield?
Mr. HOEKSTRA. I will yield.
Mr. REYES. Those are two different issues. The time was an issue of
Government Printing Office error. That is a different issue.
I would just hope that my good friend and colleague and ranking
member would agree that we sat down and agreed to bring transparency so
that the issues that came up when the gentleman was the chair of the
committee would not recur.
Mr. HOEKSTRA. That is exactly the point, that whatever abuses,
whatever we wanted transparency, these were guidelines and rules that
we agreed upon in the previous Congress, where I am glad that they were
carried over into this Congress. I am disappointed that they were not
followed the way that they were outlined in the committee process.
Mr. REYES. If the gentleman would yield.
Mr. HOEKSTRA. I will yield.
Mr. REYES. I would just again take issue with that point because we
followed the process. Staff consulted on a bipartisan basis.
Mr. HOEKSTRA. Reclaiming my time.
Mr. Chairman, no, that does not follow. The measure that we had, you
and I sat in a conference room; we went through the list with staff
discussing specifically each and every earmark. And that earmark was
not part of that process. When we got the report that accompanied this
bill to the Rules Committee, all of a sudden there was a new earmark
that you and I had not gone through. You can talk to staff and those
types of things. I was never aware and neither were they that it was an
earmark.
Mr. HASTINGS of Washington. Mr. Speaker, I am going to once again
urge
[[Page H4788]]
my colleagues to vote ``no'' on the previous question so the House can
consider the amendment that I submitted from Heather Wilson of New
Mexico.
Mr. Speaker, with that, I yield back the balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, I yield myself the remaining
portion of my time.
I am fascinated by my colleagues' arguments on the other side. We did
have a Rules Committee hearing on this matter, and there are four
members of the Rules Committee on the minority, none of whom raised any
of the issues that we have heard here today on the floor; understanding
full well that Mr. Flake comes now and says that we should have a
special session.
I also know that here on the floor I offered to Mr. Flake an
opportunity, by unanimous consent, to offer any amendment he may have,
and he didn't have an amendment at that time. I assume his argument is
that we would need to be in what he says a ``secret session.''
But one thing I do know, being one of the few Members that does serve
on the Rules Committee and on the Intelligence Committee, and that is
that everyone knew the funding level of the issue that is being
discussed. Mr. Flake may not have, but I can assure you that the
remaining Members on the Intelligence Committee knew that the mark was
included in our draft and the Community Management Account making that
minority staff certainly aware at the time between the chairman and Mr.
Hoekstra.
Now, today more than ever, we must make the creation of a strong and
flexible intelligence apparatus one of the highest, highest priorities
of this body. The terrorist attacks of September 11, combined with the
continuing threat of further attacks, underscore the importance of this
legislation.
When the American people elected Democrats to the majority, they sent
a very clear message that ``business as usual'' is no longer accepted.
They said to all of us, Republican and Democrat alike, that there are
problems in the way we operate, and we need to change how we do
business. We must, in my opinion, congratulate our intelligence
community for its successes, but we also must hold them accountable for
their failures. Rubber-stamping the administration's every action is
not acceptable. Democrats are working every day, as are Republicans, to
make America a safer place for all.
I genuinely urge my colleagues to support this measure.
I heard arguments about the climate change requirements put forward
for there to be a national intelligence estimate in that regard. And
there are arguments against it. I do not quite understand those
arguments. We made it clear that much of the information is collectable
by analysts at this time and that it would help prevent future
terrorist developments. And the way the argument has been couched on
the minority is as if this largest ever intelligence budget, largest in
the history of the Congress, is not doing everything that is needed to
be done because someone requested that there be a national intelligence
estimate with reference to climate change. One day, some people in this
body are going to get their head out of the sand and understand that
something is changing in this climate of ours, in this world and that
we all owe it as much as we can afford to make sure that we pass on a
safe environment to all our children.
With that, Mr. Speaker, I urge my colleagues to support the rule. I
urge a ``yes'' vote on the previous question.
The material previously referred to by Mr. Hastings of Washington is
as follows:
Amendment to H. Res. 388
Offered by Rep. Hastings of Washington
At the end of the resolution, add the following:
Sec. 3. Notwithstanding any other provision of this
resolution, the amendment printed in section 4 shall be in
order as though printed as the last amendment in the report
of the Committee on Rules if offered by Representative Wilson
of New Mexico or a designee. That amendment shall be
debatable for 30 minutes equally divided and controlled by
the proponent and an opponent.
Sec. 4. The amendment referred to in section 3 is as
follows:
At the end of the bill, add the following new title:
TITLE VI--ELECTRONIC SURVEILLANCE MODERNIZATION
SEC. 601. SHORT TITLE.
This title may be cited as the ``Electronic Surveillance
Modernization Act''.
SEC. 602. FISA DEFINITIONS.
(a) Agent of a Foreign Power.--Subsection (b)(1) of section
101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801) is amended--
(1) in subparagraph (B), by striking ``; or'' and inserting
``;''; and
(2) by adding at the end the following:
``(D) is reasonably expected to possess, control, transmit,
or receive foreign intelligence information while such person
is in the United States, provided that the official making
the certification required by section 104(a)(7) deems such
foreign intelligence information to be significant; or''.
(b) Electronic Surveillance.--Subsection (f) of such
section is amended to read as follows:
``(f) `Electronic surveillance' means--
``(1) the installation or use of an electronic, mechanical,
or other surveillance device for acquiring information by
intentionally directing surveillance at a particular known
person who is reasonably believed to be in the United States
under circumstances in which that person has a reasonable
expectation of privacy and a warrant would be required for
law enforcement purposes; or
``(2) the intentional acquisition of the contents of any
communication under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, if both the sender and
all intended recipients are reasonably believed to be located
within the United States.''.
(c) Minimization Procedures.--Subsection (h) of such
section is amended--
(1) in paragraph (2), by striking ``importance;'' and
inserting ``importance; and'';
(2) in paragraph (3), by striking ``; and'' and inserting
``.''; and
(3) by striking paragraph (4).
(d) Wire Communication and Surveillance Device.--Subsection
(l) of such section is amended to read as follows:
``(l) `Surveillance device' is a device that allows
surveillance by the Federal Government, but excludes any
device that extracts or analyzes information from data that
has already been acquired by the Federal Government by lawful
means.''.
(e) Contents.--Subsection (n) of such section is amended to
read as follows:
``(n) `Contents', when used with respect to a
communication, includes any information concerning the
substance, purport, or meaning of that communication.''.
SEC. 603. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER
ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is further amended by
striking section 102 and inserting the following:
``AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE
PURPOSES
``Sec. 102. (a) In General.--Notwithstanding any other
law, the President, acting through the Attorney General, may
authorize electronic surveillance without a court order under
this title to acquire foreign intelligence information for
periods of up to one year if the Attorney General certifies
in writing under oath that--
``(1) the electronic surveillance is directed at--
``(A) the acquisition of the contents of communications of
foreign powers, as defined in paragraph (1), (2), or (3) of
section 101(a), or an agent of a foreign power, as defined in
subparagraph (A) or (B) of section 101(b)(1); or
``(B) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in paragraph (1), (2), or (3) of section
101(a); and
``(2) the proposed minimization procedures with respect to
such surveillance meet the definition of minimization
procedures under section 101(h);
if the Attorney General reports such minimization procedures
and any changes thereto to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate at least 30 days
prior to the effective date of such minimization procedures,
unless the Attorney General determines immediate action is
required and notifies the committees immediately of such
minimization procedures and the reason for their becoming
effective immediately.
``(b) Minimization Procedures.--An electronic surveillance
authorized by this subsection may be conducted only in
accordance with the Attorney General's certification and the
minimization procedures. The Attorney General shall assess
compliance with such procedures and shall report such
assessments to the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee on
Intelligence of the Senate under the provisions of section
108(a).
``(c) Submission of Certification.--The Attorney General
shall immediately transmit under seal to the court
established under section 103(a) a copy of his certification.
Such certification shall be maintained under security
measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed
unless--
[[Page H4789]]
``(1) an application for a court order with respect to the
surveillance is made under section 104; or
``(2) the certification is necessary to determine the
legality of the surveillance under section 106(f).
``AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION
``Sec. 102A. (a) In General.--Notwithstanding any other
law, the President, acting through the Attorney General may,
for periods of up to one year, authorize the acquisition of
foreign intelligence information concerning a person
reasonably believed to be outside the United States if the
Attorney General certifies in writing under oath that--
``(1) the acquisition does not constitute electronic
surveillance;
``(2) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
wire or electronic communications service provider,
custodian, or other person (including any officer, employee,
agent, or other specified person of such service provider,
custodian, or other person) who has access to wire or
electronic communications, either as they are transmitted or
while they are stored, or equipment that is being or may be
used to transmit or store such communications;
``(3) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(4) the proposed minimization procedures with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h).
``(b) Specific Place Not Required.--A certification under
subsection (a) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition of foreign intelligence information will be
directed.
``(c) Submission of Certification.--The Attorney General
shall immediately transmit under seal to the court
established under section 103(a) a copy of a certification
made under subsection (a). Such certification shall be
maintained under security measures established by the Chief
Justice of the United States and the Attorney General, in
consultation with the Director of National Intelligence, and
shall remain sealed unless the certification is necessary to
determine the legality of the acquisition under section 102B.
``(d) Minimization Procedures.--An acquisition under this
section may be conducted only in accordance with the
certification of the Attorney General and the minimization
procedures adopted by the Attorney General. The Attorney
General shall assess compliance with such procedures and
shall report such assessments to the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate under
section 108(a).
``DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS
OF FOREIGN INTELLIGENCE INFORMATION
``Sec. 102B. (a) Directive.--With respect to an
authorization of electronic surveillance under section 102 or
an authorization of an acquisition under section 102A, the
Attorney General may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition of foreign intelligence
information in such a manner as will protect the secrecy of
the electronic surveillance or acquisition and produce a
minimum of interference with the services that such person is
providing to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the electronic surveillance or
acquisition or the aid furnished that such person wishes to
maintain.
``(b) Compensation.--The Government shall compensate, at
the prevailing rate, a person for providing information,
facilities, or assistance pursuant to subsection (a).
``(c) Failure to Comply.--In the case of a failure to
comply with a directive issued pursuant to subsection (a),
the Attorney General may petition the court established under
section 103(a) to compel compliance with the directive. The
court shall issue an order requiring the person or entity to
comply with the directive if it finds that the directive was
issued in accordance with section 102(a) or 102A(a) and is
otherwise lawful. Failure to obey an order of the court may
be punished by the court as contempt of court. Any process
under this section may be served in any judicial district in
which the person or entity may be found.
``(d) Review of Petitions.--(1) In General.--(A)
Challenge.--A person receiving a directive issued pursuant to
subsection (a) may challenge the legality of that directive
by filing a petition with the pool established under section
103(e)(1).
``(B) Assignment of Judge.--The presiding judge designated
pursuant to section 103(b) shall assign a petition filed
under subparagraph (A) to one of the judges serving in the
pool established by section 103(e)(1). Not later than 24
hours after the assignment of such petition, the assigned
judge shall conduct an initial review of the directive. If
the assigned judge determines that the petition is frivolous,
the assigned judge shall deny the petition and affirm the
directive or any part of the directive that is the subject of
the petition. If the assigned judge determines the petition
is not frivolous, the assigned judge shall, within 72 hours,
consider the petition in accordance with the procedures
established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination
under this subsection.
``(2) Standard of Review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that such directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall affirm such directive, and order the recipient to
comply with such directive.
``(3) Directives Not Modified.--Any directive not
explicitly modified or set aside under this subsection shall
remain in full effect.
``(e) Appeals.--The Government or a person receiving a
directive reviewed pursuant to subsection (d) may file a
petition with the court of review established under section
103(b) for review of the decision issued pursuant to
subsection (d) not later than 7 days after the issuance of
such decision. Such court of review shall have jurisdiction
to consider such petitions and shall provide for the record a
written statement of the reasons for its decision. On
petition by the Government or any person receiving such
directive for a writ of certiorari, the record shall be
transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
``(f) Proceedings.--Judicial proceedings under this section
shall be concluded as expeditiously as possible. The record
of proceedings, including petitions filed, orders granted,
and statements of reasons for decision, shall be maintained
under security measures established by the Chief Justice of
the United States, in consultation with the Attorney General
and the Director of National Intelligence.
``(g) Sealed Petitions.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(h) Liability.--No cause of action shall lie in any court
against any person for providing any information, facilities,
or assistance in accordance with a directive under this
section.
``(i) Use of Information.--Information acquired pursuant to
a directive by the Attorney General under this section
concerning any United States person may be used and disclosed
by Federal officers and employees without the consent of the
United States person only in accordance with the minimization
procedures required by section 102(a) or 102A(a). No
otherwise privileged communication obtained in accordance
with, or in violation of, the provisions of this section
shall lose its privileged character. No information from an
electronic surveillance under section 102 or an acquisition
pursuant to section 102A may be used or disclosed by Federal
officers or employees except for lawful purposes.
``(j) Use in Law Enforcement.--No information acquired
pursuant to this section shall be disclosed for law
enforcement purposes unless such disclosure is accompanied by
a statement that such information, or any information derived
from such information, may only be used in a criminal
proceeding with the advance authorization of the Attorney
General.
``(k) Disclosure in Trial.--If the Government intends to
enter into evidence or otherwise use or disclose in any
trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States, against an aggrieved person,
any information obtained or derived from an electronic
surveillance conducted under section 102 or an acquisition
authorized pursuant to section 102A, the Government shall,
prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to disclose or use that
information or submit it in evidence, notify the aggrieved
person and the court or other authority in which the
information is to be disclosed or used that the Government
intends to disclose or use such information.
``(l) Disclosure in State Trials.--If a State or political
subdivision of a State intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of a State or a
political subdivision of a State, against an aggrieved
person, any information obtained or derived from an
electronic surveillance authorized pursuant to section 102 or
an acquisition authorized pursuant to section 102A, the State
or political subdivision of such State shall notify the
aggrieved person, the court, or other authority in which the
information is to be disclosed or used and the Attorney
General that the State or political subdivision intends to
disclose or use such information.
``(m) Motion to Exclude Evidence.--(1) In General.--Any
person against whom evidence obtained or derived from an
electronic surveillance authorized pursuant to section 102 or
an acquisition authorized pursuant to section 102A is to be,
or has been, used or disclosed in any trial, hearing, or
other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move
to
[[Page H4790]]
suppress the evidence obtained or derived from such
electronic surveillance or such acquisition on the grounds
that--
``(A) the information was unlawfully acquired; or
``(B) the electronic surveillance or acquisition was not
properly made in conformity with an authorization under
section 102(a) or 102A(a).
``(2) Timing.--A person moving to suppress evidence under
paragraph (1) shall make the motion to suppress the evidence
before the trial, hearing, or other proceeding unless there
was no opportunity to make such a motion or the person was
not aware of the grounds of the motion.
``(n) Review of Motions.--If a court or other authority is
notified pursuant to subsection (k) or (l), a motion is made
pursuant to subsection (m), or a motion or request is made by
an aggrieved person pursuant to any other statute or rule of
the United States or any State before any court or other
authority of the United States or any State--
``(1) to discover or obtain an Attorney General directive
or other materials relating to an electronic surveillance
authorized pursuant to section 102 or an acquisition
authorized pursuant to section 102A, or
``(2) to discover, obtain, or suppress evidence or
information obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an
acquisition authorized pursuant to section 102A,
the United States district court or, where the motion is made
before another authority, the United States district court in
the same district as the authority, shall, notwithstanding
any other law, if the Attorney General files an affidavit
under oath that disclosure or an adversary hearing would harm
the national security of the United States, review in camera
and ex parte the application, order, and such other materials
relating to such electronic surveillance or such acquisition
as may be necessary to determine whether such electronic
surveillance or such acquisition authorized under this
section was lawfully authorized and conducted. In making this
determination, the court may disclose to the aggrieved
person, under appropriate security procedures and protective
orders, portions of the directive or other materials relating
to the acquisition only where such disclosure is necessary to
make an accurate determination of the legality of the
acquisition.
``(o) Determinations.--If, pursuant to subsection (n), a
United States district court determines that the acquisition
authorized under this section was not lawfully authorized or
conducted, it shall, in accordance with the requirements of
law, suppress the evidence which was unlawfully obtained or
derived or otherwise grant the motion of the aggrieved
person. If the court determines that such acquisition was
lawfully authorized and conducted, it shall deny the motion
of the aggrieved person except to the extent that due process
requires discovery or disclosure.
``(p) Binding Orders.--Orders granting motions or requests
under subsection (m), decisions under this section that an
electronic surveillance or an acquisition was not lawfully
authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of
directives, orders, or other materials relating to such
acquisition shall be final orders and binding upon all courts
of the United States and the several States except a United
States court of appeals and the Supreme Court.
``(q) Coordination.--(1) In General.--Federal officers who
acquire foreign intelligence information may consult with
Federal law enforcement officers or law enforcement personnel
of a State or political subdivision of a State, including the
chief executive officer of that State or political
subdivision who has the authority to appoint or direct the
chief law enforcement officer of that State or political
subdivision, to coordinate efforts to investigate or protect
against--
``(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
``(B) sabotage, international terrorism, or the development
or proliferation of weapons of mass destruction by a foreign
power or an agent of a foreign power; or
``(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power.
``(2) Certification Required.--Coordination authorized
under paragraph (1) shall not preclude the certification
required by section 102(a) or 102A(a).
``(r) Retention of Directives and Orders.--A directive made
or an order granted under this section shall be retained for
a period of not less than 10 years from the date on which
such directive or such order is made.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by inserting after the
item relating to section 102 the following:
``102A. Authorization for acquisition of foreign intelligence
information.
``102B. Directives relating to electronic surveillance and other
acquisitions of foreign intelligence information.''.
SEC. 604. JURISDICTION OF FISA COURT.
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803) is amended by adding at the end the
following new subsection:
``(g) Applications for a court order under this title are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the
court having jurisdiction under this section, and a judge to
whom an application is made may, notwithstanding any other
law, grant an order, in conformity with section 105,
approving electronic surveillance of a foreign power or an
agent of a foreign power for the purpose of obtaining foreign
intelligence information.''.
SEC. 605. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) in paragraph (6), by striking ``detailed description''
and inserting ``summary description'';
(B) in paragraph (7)--
(i) in the matter preceding subparagraph (A), by striking
``or officials designated'' and all that follows through
``consent of the Senate'' and inserting ``designated by the
President to authorize electronic surveillance for foreign
intelligence purposes'';
(ii) in subparagraph (C), by striking ``techniques;'' and
inserting ``techniques; and'';
(iii) by striking subparagraph (D); and
(iv) by redesignating subparagraph (E) as subparagraph (D);
(C) in paragraph (8), by striking ``a statement of the
means'' and inserting ``a summary statement of the means'';
(D) in paragraph (9)--
(i) by striking ``a statement'' and inserting ``a summary
statement''; and
(ii) by striking ``application;'' and inserting
``application; and'';
(E) in paragraph (10), by striking ``thereafter; and'' and
inserting ``thereafter.''; and
(F) by striking paragraph (11).
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3), by striking ``or the Director of National
Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence
Agency''.
SEC. 606. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (c)(1)--
(A) in subparagraph (D), by striking ``surveillance;'' and
inserting ``surveillance; and'';
(B) in subparagraph (E), by striking ``approved; and'' and
inserting ``approved.''; and
(C) by striking subparagraph (F);
(3) by striking subsection (d);
(4) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(5) in subsection (d), as redesignated by paragraph (4), by
amending paragraph (2) to read as follows:
``(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the
same manner as required for an original order and may be for
a period not to exceed one year.'';
(6) in subsection (e), as redesignated by paragraph (4), to
read as follows:
``(e) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(1) determines that an emergency situation exists with
respect to the employment of electronic surveillance to
obtain foreign intelligence information before an order
authorizing such surveillance can with due diligence be
obtained;
``(2) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(3) informs a judge having jurisdiction under section 103
at the time of such authorization that the decision has been
made to employ emergency electronic surveillance; and
``(4) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not more than 168 hours after the Attorney
General authorizes such surveillance.
If the Attorney General authorizes such emergency employment
of electronic surveillance, the Attorney General shall
require that the minimization procedures required by this
title for the issuance of a judicial order be followed. In
the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest. In the event that such application for approval
is denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
[[Page H4791]]
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person. A denial of the application made under
this subsection may be reviewed as provided in section
103.'';
(7) in subsection (h), as redesignated by paragraph (4)--
(A) by striking ``a wire or'' and inserting ``an''; and
(B) by striking ``physical search'' and inserting
``physical search or in response to a certification by the
Attorney General or a designee of the Attorney General
seeking information, facilities, or technical assistance from
such person under section 102B''; and
(8) by adding at the end the following new subsection:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, the judge shall also authorize the
installation and use of pen registers and trap and trace
devices to acquire dialing, routing, addressing, and
signaling information related to such communications and such
dialing, routing, addressing, and signaling information shall
not be subject to minimization procedures.''.
SEC. 607. USE OF INFORMATION.
Section 106(i) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1806(i)) is amended--
(1) by striking ``radio communication'' and inserting
``communication''; and
(2) by striking ``contents indicates'' and inserting
``contents contain significant foreign intelligence
information or indicate''.
SEC. 608. CONGRESSIONAL OVERSIGHT.
(a) Electronic Surveillance Under FISA.--Section 108 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1808) is amended--
(1) in subsection (a)(2)--
(A) in subparagraph (B), by striking ``and'' at the end;
(B) in subparagraph (C), by striking the period and
inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(D) the authority under which the electronic surveillance
is conducted.''; and
(2) by striking subsection (b) and inserting the following:
``(b) On a semiannual basis, the Attorney General
additionally shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate on
electronic surveillance conducted without a court order.''.
(b) Intelligence Activities.--The National Security Act of
1947 (50 U.S.C. 401 et seq.) is amended--
(1) in section 501 (50 U.S.C. 413)--
(A) by redesignating subsection (f) as subsection (g); and
(B) by inserting after subsection (e) the following new
subsection:
``(f) The Chair of each of the congressional intelligence
committees, in consultation with the ranking member of the
committee for which the person is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection
(b) as such Chair considers necessary.'';
(2) in section 502 (50 U.S.C. 414), by adding at the end
the following new subsection:
``(d) Informing of Committee Members.--The Chair of each of
the congressional intelligence committees, in consultation
with the ranking member of the committee for which the person
is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair
considers necessary.''; and
(3) in section 503 (50 U.S.C. 415), by adding at the end
the following new subsection:
``(g) The Chair of each of the congressional intelligence
committees, in consultation with the ranking member of the
committee for which the person is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as
such Chair considers necessary.''.
SEC. 609. INTERNATIONAL MOVEMENT OF TARGETS.
(a) Electronic Surveillance.--Section 105(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as
redesignated by section 606(4), is amended by adding at the
end the following new paragraph:
``(4) An order issued under this section shall remain in
force during the authorized period of surveillance
notwithstanding the absence of the target from the United
States, unless the Government files a motion to extinguish
the order and the court grants the motion.''.
(b) Physical Search.--Section 304(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)) is
amended by adding at the end the following new paragraph:
``(4) An order issued under this section shall remain in
force during the authorized period of surveillance
notwithstanding the absence of the target from the United
States, unless the Government files a motion to extinguish
the order and the court grants the motion.''.
SEC. 610. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM
PROGRAMS.
(a) In General.--Notwithstanding any other provision of
law, and in addition to the immunities, privileges, and
defenses provided by any other provision of law, no action,
claim, or proceeding shall lie or be maintained in any court,
and no penalty, sanction, or other form of remedy or relief
shall be imposed by any court or any other body, against any
person for an activity arising from or relating to the
provision to an element of the intelligence community of any
information (including records or other information
pertaining to a customer), facilities, or assistance during
the period of time beginning on September 11, 2001, and
ending on the date that is 60 days after the date of the
enactment of this Act, in connection with any alleged
communications intelligence program that the Attorney General
or a designee of the Attorney General certifies, in a manner
consistent with the protection of State secrets, is, was, or
would be intended to protect the United States from a
terrorist attack. This section shall apply to all actions,
claims, or proceedings pending on or after the effective date
of this Act.
(b) Jurisdiction.--Any action, claim, or proceeding
described in subsection (a) that is brought in a State court
shall be deemed to arise under the Constitution and laws of
the United States and shall be removable pursuant to section
1441 of title 28, United States Code.
(c) Definitions.--In this section:
(1) Intelligence community.--The term ``intelligence
community'' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) Person.--The term ``person'' has the meaning given the
term in section 2510(6) of title 18, United States Code.
SEC. 611. REPORT ON MINIMIZATION PROCEDURES.
(a) Report.--Not later than two years after the date of the
enactment of this Act, and annually thereafter until December
31, 2012, the Director of the National Security Agency, in
consultation with the Director of National Intelligence and
the Attorney General, shall submit to the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate a report
on the effectiveness and use of minimization procedures
applied to information concerning United States persons
acquired during the course of a communications activity
conducted by the National Security Agency.
(b) Requirements.--A report submitted under subsection (a)
shall include--
(1) a description of the implementation, during the course
of communications intelligence activities conducted by the
National Security Agency, of procedures established to
minimize the acquisition, retention, and dissemination of
nonpublicly available information concerning United States
persons;
(2) the number of significant violations, if any, of such
minimization procedures during the 18 months following the
effective date of this Act; and
(3) summary descriptions of such violations.
(c) Retention of Information.--Information concerning
United States persons shall not be retained solely for the
purpose of complying with the reporting requirements of this
section.
SEC. 612. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO
IMMINENT THREAT.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) by adding at the end of title I the following new
section:
``AUTHORIZATION DUE TO IMMINENT THREAT
``Sec. 113. (a) In General.--Notwithstanding any other
provision of law, but subject to the provisions of this
section, the President, acting through the Attorney General,
may authorize electronic surveillance without an order under
this title to acquire foreign intelligence information for a
period not to exceed 90 days if the President submits to the
congressional leadership, the congressional intelligence
committees, and the Foreign Intelligence Surveillance Court a
written notification that the President has determined that
there exists an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the
United States. Such notification--
``(1) shall be submitted as soon as practicable, but in no
case later than 5 days after the date on which the President
authorizes electronic surveillance under this section;
``(2) shall specify the entity responsible for the threat
and any affiliates of the entity;
``(3) shall state the reason to believe that the threat of
imminent attack exists;
``(4) shall state the reason the President needs broader
authority to conduct electronic surveillance in the United
States as a result of the threat of imminent attack;
``(5) shall include a description of the foreign
intelligence information that will be collected and the means
that will be used to
[[Page H4792]]
collect such foreign intelligence information; and
``(6) may be submitted in classified form.
``(b) Subsequent Certifications.--At the end of the 90-day
period described in subsection (a), and every 90 days
thereafter, the President may submit a subsequent written
notification to the congressional leadership, the
congressional intelligence committees, the other relevant
committees, and the Foreign Intelligence Surveillance Court
that the circumstances of the threat for which the President
submitted a written notification under subsection (a) require
the President to continue the authorization of electronic
surveillance under this section for an additional 90 days.
The President shall be authorized to conduct electronic
surveillance under this section for an additional 90 days
after each such subsequent written notification.
``(c) Electronic Surveillance of Individuals.--The
President, or an official designated by the President to
authorize electronic surveillance, may only conduct
electronic surveillance of a person under this section if the
President or such official determines that--
``(1) there is a reasonable belief that such person is
communicating with an entity or an affiliate of an entity
that is reasonably believed to be responsible for imminent
threat of attack; and
``(2) the information obtained from the electronic
surveillance may be foreign intelligence information.
``(d) Minimization Procedures.--The President may not
authorize electronic surveillance under this section until
the Attorney General approves minimization procedures for
electronic surveillance conducted under this section.
``(e) United States Persons.--Notwithstanding subsections
(a) and (b), the President may not authorize electronic
surveillance of a United States person under this section
without an order under this title for a period of more than
60 days unless the President, acting through the Attorney
General, submits a certification to the congressional
intelligence committees that--
``(1) the continued electronic surveillance of the United
States person is vital to the national security of the United
States;
``(2) describes the circumstances that have prevented the
Attorney General from obtaining an order under this title for
continued surveillance;
``(3) describes the reasons for believing the United States
person is affiliated with or in communication with an entity
or an affiliate of an entity that is reasonably believed to
be responsible for imminent threat of attack; and
``(4) describes the foreign intelligence information
derived from the electronic surveillance conducted under this
section.
``(f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to
obtain an order authorizing subsequent electronic
surveillance under this title.
``(g) Definitions.--In this section:
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate.
``(2) Congressional leadership.--The term `congressional
leadership' means the Speaker and minority leader of the
House of Representatives and the majority leader and minority
leader of the Senate.
``(3) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a).
``(4) Other relevant committees.--The term `other relevant
committees' means the Committees on Appropriations, the
Committees on Armed Services, and the Committees on the
Judiciary of the House of Representatives and the Senate.'';
and
(2) in the table of contents in the first section, by
inserting after the item relating to section 111 the
following new item:
``Sec. 112. Authorization due to imminent threat.''.
SEC. 613. TECHNICAL AND CONFORMING AMENDMENTS.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) in section 105(a)(4), as redesignated by section
606(1)(B)--
(A) by striking ``104(a)(7)(E)'' and inserting
``104(a)(7)(D)''; and
(B) by striking ``104(d)'' and inserting ``104(c)'';
(2) in section 106(j), in the matter preceding paragraph
(1), by striking ``105(e)'' and inserting ``105(d)''; and
(3) in section 108(a)(2)(C), by striking ``105(f)'' and
inserting ``105(e)''.
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
109th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Democratic majority agenda and a vote to allow
the opposition, at least for the moment, to offer an
alternative plan. It is a vote about what the House should be
debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives, (VI, 308-311) describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution . . . [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress, (page
56). Here's how the Rules Committee described the rule using
information from Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. HASTINGS of Florida. Mr. Speaker, I yield back the balance of my
time, and I move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken, and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. HASTINGS of Florida. Mr. Speaker, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
Pursuant to clause 8 and clause 9 of rule XX, this 15-minute vote on
ordering the previous question will be followed by 5-minute votes on
adopting House Resolution 388, if ordered; ordering the previous
question on House Resolution 387; and adopting House Resolution 387, if
ordered.
The vote was taken by electronic device, and there were--yeas 223,
nays 199, not voting 10, as follows:
[Roll No. 324]
YEAS--223
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Filner
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
[[Page H4793]]
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
NAYS--199
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Jo Ann
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McHenry
McHugh
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Stearns
Sullivan
Tancredo
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--10
Brady (PA)
Engel
Fattah
Frank (MA)
McCrery
McMorris Rodgers
Rangel
Souder
Waters
Watson
{time} 1506
Mrs. CUBIN changed her vote from ``yea'' to ``nay.''
Mr. CONYERS and Mr. RUSH changed their vote from ``nay'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Recorded Vote
Mr. HASTINGS of Florida. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 226,
noes 198, not voting 8, as follows:
[Roll No. 325]
AYES--226
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Filner
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
NOES--198
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Jo Ann
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
