[Congressional Record: November 15, 2007 (House)]
[Page H13969-H13976]
PROVIDING FOR FURTHER CONSIDERATION OF H.R. 3773, RESTORE ACT OF 2007
Mr. HASTINGS of Florida. Mr. Speaker, by direction of the Committee
on Rules, I call up House Resolution 824 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 824
Resolved, That during further consideration of the bill
(H.R. 3773) to amend the Foreign Intelligence Surveillance
Act of 1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes,
as amended, pursuant to House Resolution 746, the further
amendment printed in the report of the Committee on Rules
accompanying this resolution shall be considered as adopted.
Time for debate on the bill pursuant to House Resolution 746
shall be considered as expired. The bill, as amended, shall
be debatable for one hour, with 30 minutes equally divided
and controlled by the chairman and ranking minority member of
the Committee on the Judiciary and 30 minutes equally divided
and controlled by the chairman and ranking minority member of
the Permanent Select Committee on Intelligence.
The SPEAKER pro tempore. The gentleman from Florida is recognized for
1 hour.
Mr. HASTINGS of Florida. For the purpose of debate only, Mr. Speaker,
I yield the customary 30 minutes to the gentleman, my good friend from
Washington, Representative Hastings. All time yielded during
consideration of the rule is for debate only.
General Leave
Mr. Speaker, I also ask unanimous consent that all Members have 5
legislative days in which to revise and extend their remarks and insert
extraneous material in 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. I yield myself such time as I may consume.
Mr. Speaker, House Resolution 824 provides for further consideration
of H.R. 3773, the RESTORE Act of 2007, under a closed rule.
The rule provides 60 minutes of debate. Thirty minutes will be
equally divided and controlled by the chairperson and ranking
Republican of the Committee on the Judiciary, and 30 minutes will be
equally divided and controlled by the chairperson and ranking
Republican of the Permanent Select Committee on Intelligence.
The rule considers as adopted another amendment printed in the Rules
Committee report.
Mr. Speaker, with the resurgence of al Qaeda and an increasing global
threat from weapons of mass destruction in places such as Iran, every
single person in this body wants to ensure that our intelligence
professionals have the proper resources they need to protect our
Nation.
As vice chairman of the House Intelligence Committee, I assure you
that each and every one of us on that panel and others, Republican or
Democrat, are working tirelessly, and often together, to do just that.
But the government is not exempt from the rule of law, as the
Constitution confers certain unalienable rights and civil liberties to
each of us.
After the terrorist attacks of September 11, the Bush administration
upset that balance by ignoring the Foreign Intelligence Surveillance
Act law, establishing a secret wiretapping program, and refusing to
work with Congress to make the program lawful.
Democratic members of the Intelligence Committee have been trying to
learn about the Bush administration's FISA programs for years. But the
administration, which has been anything but forthcoming, has sought to
block our oversight efforts nearly every step of the way.
When the administration finally came to Congress to modify the law
this summer, it came with a flawed proposal to allow sweeping authority
to eavesdrop on Americans' communications while doing almost nothing to
protect their rights.
The RESTORE Act, true to its name, restores the checks and balances
on the executive branch, enhancing our security and preserving our
liberty. It rejects the false statement that we must sacrifice liberty
to be secure. The legislation provides our intelligence community with
the tools it needs to identify and disrupt terrorist networks with
speed and agility. It provides additional resources to the Department
of Justice, National Security Agency, and the FISA Court to assist in
auditing and streamlining the FISA application process while preventing
the backlog of critical intelligence gathering.
The RESTORE Act prohibits the warrantless electronic surveillance of
Americans in the United States, including their medical records, homes
and offices. And it requires the government to establish a record-
keeping system to track instances where information identifying U.S.
citizens is disseminated.
This bill preserves the role of the FISA Court as an independent
check of the government to prevent it from infringing on the rights of
Americans. It rejects the administration's belief that the court should
simply be a rubber stamp.
Finally, the bill sunsets in 2009. This is a critical provision
because it requires the constant oversight and regular evaluation of
our FISA laws, actions which were largely neglected during the last 6
years of Republican control.
In so many ways, the underlying legislation is more efficient and
effective than the administration's proposal which passed in August.
Mr. Speaker, as my colleagues know, last month, we came to the floor
on this bill, but when it became clear that Republicans were intent on
playing
[[Page H13970]]
politics with the security of the American people, we refused to take
the bait.
{time} 1015
At that time, Republicans announced that they intended to offer a
motion to recommit the bill that had no substantive base, was already
addressed in the bill and in current law, and was designed to delay
consideration of this important intelligence tool. Their reasoning was
disingenuous; their motives were absolutely political. As a result,
Democrats refused to partake in their game of political theater.
If the House does not pass this bill today because of Republican
obstructionism, then it will be abundantly clear that the minority and
the administration are willing to put politics in front of the safety
of the American people. We are back today, and we will continue to come
back to the House floor, however many times it takes, to give our men
and women in the intelligence community the tools that they need to do
their jobs and keep America safe, while also preserving our civil
liberties. This is a balance that is not only difficult but absolutely
critical.
I urge my colleagues to vote ``yes'' on the rule and ``yes'' on the
underlying legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. I thank the gentleman and my namesake
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, yesterday the Rules
Committee held a second hearing to consider a second rule to provide
for consideration of H.R. 3773, the Responsible Electronic Surveillance
That is Overseen, Reviewed, and Effective, or the RESTORE Act. As you
may recall, a month ago the House considered and approved a closed rule
for the RESTORE Act. Not only was it a closed rule, prohibiting any
debate on amendments, but it also denied Members the opportunity to
cast a separate vote on a manager's amendment and changes to the
amendment which became part of the base bill once the rule was adopted.
Mr. Speaker, here we go again. The result a month ago was that the
Democrat majority recognized the RESTORE Act was insufficient and
decided to pull the bill from the House floor without a vote. Rather
than spending a month working in a bipartisan manner to strengthen the
bill, yesterday the Democrat-controlled Rules Committee was at it
again, rewriting and denying Republican Members the chance to even
offer input or suggestions and prohibiting every single Member of the
House from offering amendments and alternatives. The Democrat
majority's take-it-or-leave-it strategy on this bill is dangerous and
is destined to fail, Mr. Speaker. It will not close our Nation's
intelligence gap. In fact, it could widen it.
In 1978, Congress enacted the Foreign Intelligence Surveillance Act,
or FISA, to establish a procedure for electronic surveillance of
international communications. As enacted into law, FISA had two
principles: first, to protect the civil liberties of Americans by
requiring the government to first obtain a court order before
collecting electronic intelligence on U.S. citizens in our country;
second, the law specified how intelligence officials working to perfect
our national security could collect information on foreign persons in
foreign places without having to get a warrant.
The intent of the original FISA law was to enhance American security,
while at the same time protecting American privacy. Recognizing that no
responsibility of the Federal Government is more important than
providing for the defense and security of the American people, Congress
should be doing all it can to ensure that FISA continues to reflect the
intent of the original law.
In August, Congress, in a bipartisan manner, took an important step
forward to close our Nation's intelligence gap. The Protect America Act
passed only after repeated attempts by Republicans to give our Nation's
intelligence professionals the tools and the authority they needed to
protect our homeland. This action was long overdue, and this law marked
a significant step forward in improving our national security. The
Democrats forced the security tools that we passed in August to expire
after 6 months.
Now Congress must act again to renew this law by early next year
before the Democrat expiration date arrives and our national security
once again will be at serious risk. Unfortunately, the legislation
before us today does not provide the security we need to protect our
Nation from a potential future terrorist attack. It is a retreat, Mr.
Speaker, from a law enacted in August, and jeopardizes the safety and
security of Americans from foreign terrorist threats.
I am concerned that not only were final changes to the bill given to
the minority just yesterday afternoon, but it was stated in our hearing
that the Democrat chairman of the Judiciary Committee got the revised
text just moments before we did. Mr. Speaker, I would like to recognize
Mr. Conyers' willingness expressed in his testimony before the Rules
Committee to work with Republicans and perhaps even postpone
consideration of a rule until the bill could be properly reviewed and
Republicans had a chance to offer a substitute or changes to the bill.
Sadly, the chairwoman of the Rules Committee overruled Mr. Conyers and
expressed her intention to move this bill without any alternatives,
amendments, or possible improvements being considered.
The action of the Rules Committee in October and again yesterday to
completely shut down the legislative process shatters the promises made
by Democrat leaders a year ago. The distinguished chairwoman of the
Rules Committee on December 27, 2006, was quoted in the New York Times,
Mr. Speaker: ``We are going to give people an honest and contemplative
body they can be proud of once more. We are going to have a much more
open process.''
House Majority Leader Hoyer, on December 5, 2006, was quoted in
Congress Daily PM as saying, Mr. Speaker: ``We intend to have a Rules
Committee that gives opposition voices and alternative proposals an
ability to be heard and considered on the floor of the House.''
Mr. Speaker, actions obviously speak louder than words. The
modernization of foreign intelligence surveillance into the 21st
century is a critical national security priority. It is alarming that
the Democrat majority wants to move full speed ahead on a bill that
weakens Americans' privacy protections, while at the same time
strengthening protections for our enemies in the war on terror. I must
therefore urge my colleagues to vote against this closed rule so that
we can make absolutely certain that we are making our laws more, not
less, effective in our constant battle to prevent a future terrorist
attack against our Nation.
If this rule is adopted, Members will only have the choice to vote
for or against a seriously flawed bill that threatens, not strengthens,
our national security. The Democrat take-it-or-leave-it strategy shuts
down all voices from being heard, and ultimately every American can
suffer the consequences if this bill and the rule are adopted.
Enacting the Protect Act last August, which was a major
accomplishment of this Congress, which has chosen to spend, frankly,
more time debating and enacting legislation naming post offices and
Federal buildings than real policy, it is ironic that the Democrat
majority now wants to pull the rug out from under this successful
accomplishment.
Again, Mr. Speaker, I urge my colleagues to vote against this closed
rule.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 2
minutes to the distinguished gentlewoman from California (Ms. Matsui),
my colleague and good friend from the Rules Committee.
Ms. MATSUI. I thank the gentleman from Florida for yielding me time.
Mr. Speaker, liberty and security are not mutually exclusive.
Reliable intelligence is crucial for the defense of our Nation. Without
it, we would not be safe. At the same time, civil liberties are a vital
part of our national identity. Without them, we would not be free.
[[Page H13971]]
Our Founding Fathers understood that liberty and security complement
each other. Unfortunately, this core premise has been muddled as we
have debated FISA legislation. This legislation protects the people and
the principles that we hold so dear in this country and it modernizes
our Nation's intelligence laws to meet the technological demands of the
21st century.
I am especially pleased that the bill before us today provides such
strong legal clarity. Without clear boundaries, intelligence officers
will err on the side of caution. Strong legal footing not only protects
our civil liberties; it also ensures that prosecutions will not be
jeopardized.
Mr. Speaker, the American people also deserve disclosure of the data
that has been surrendered to the government by the telecommunications
industry. It is critical for Congress to be fully informed before
making such an important decision as granting retroactive immunity.
Brave men and women have sacrificed to protect the civil liberties and
values that we hold most dear. We cannot and should not lightly brush
their contributions aside. Instead, we must honor their memories by
taking responsible action to protect two of the things that our
constituents hold most dear, our freedom and our national security.
Neither of these basic American values can exist without the other.
I will continue to support bills like the RESTORE Act that recognize
this essential truth. I urge all my colleagues to join me in supporting
this legislation.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 6
minutes to the gentleman from Michigan (Mr. Hoekstra), the ranking
member of the Intelligence Committee.
Mr. HOEKSTRA. I thank my colleague for yielding.
Mr. Speaker, we have talked about the importance, as we have just
heard, we have just heard about clear legal authorities; we have talked
about the protection of U.S. persons, the need to study this issue in a
very important, judicious manner. It's not what happened over the last
4 weeks. Over the last 4 weeks, our colleagues on the other side of the
aisle were trying to figure out exactly how to bring this vote forward
to get the votes necessary to pass it.
As we went to Rules yesterday, it was about a half hour before we saw
the manager's amendment. As I read through the manager's amendment,
this is interesting, and as with much else on FISA, I wonder what this
really means and how it really works. Does it really provide us with
the clear legal authorities? Are the statements that it makes clear?
Will it help our intelligence communities?
And while there's a lot of problems in the rest of the bill, I just
want to focus on one part of the manager's amendment that is self-
enacting today, and that is why I rise in opposition to this
unnecessary second rule. It places unnecessary, burdensome restrictions
on the intelligence community through a self-executing amendment.
More importantly, however, I would like to highlight my concern with
a provision of the manager's amendment in this rule that appears to
give extremely broad and vague authorities to the executive branch to
conduct surveillance on undocumented aliens within the United States.
Section 18 of the manager's amendment is bluntly titled: ``No Rights
Under the RESTORE Act for Undocumented Aliens.'' No rights under the
RESTORE Act for undocumented aliens. Then it goes on to say: ``This act
and the amendments made by this act,'' and by ``this act,'' it's
talking about FISA, not this bill, at least that is how I would
interpret it, ``shall not be construed to prohibit surveillance of, or
grant any rights to an alien not permitted to be in or remain in the
United States.''
This poorly conceived and ill-advised provision appears to provide an
extremely broad and completely blank check to the executive branch to
conduct wholly unregulated surveillance on an undocumented alien in the
United States. The scope of this is unprecedented. We have never before
extended such blanket authority to the intelligence community to
collect information on any person within the country, legal or illegal.
The language is also as vague as it is broad. My counsel says he
doesn't know what the effect of an alien not permitted to be in or
remain in the United States means, since it doesn't define those terms
by reference to other laws. The overall effect of this provision could
be breathtaking in its scope.
One of the issues that was supposed to be definitively clarified in
this bill is whether or not the enhanced authorities of the Protect
America Act or this bill would allow physical searches to be conducted
of the homes and businesses of innocent Americans. Since that
clarification is supposed to be made in the RESTORE Act, it seems that
this provision must be read to permit physical searches of the homes
and offices of undocumented aliens.
{time} 1030
I've got a few questions for the other side that I hope they would
take the time to answer when time is yielded back to them. I would like
to obtain clarification with respect to a number of ambiguities in the
manager's amendment. Would you clarify under which specific laws an
alien could be ``permitted to be in or remain in the United States''
under this manager's amendment? Since it does not refer to specific
laws, would the President denying someone permission to remain in the
United States under this executive authority trigger this provision?
The amendment also says that it does not prohibit surveillance of
undocumented aliens. Would you further clarify what types of
surveillance of undocumented aliens are authorized under this
provision?
The amendment does not define the term ``surveillance.'' Would it
allow surveillance against possible illegal aliens for law enforcement
purposes? Would it allow foreign intelligence surveillance to be
conducted against transnational smuggling rings? Would it allow
surveillance to determine whether someone is an alien not permitted to
be in or remain in the United States? Would the amendment exempt
undocumented aliens from the physical search requirements of FISA?
One final clarification. Does the term ``this Act,'' as I said, I
believe it refers to all of FISA, or is it just some section? Could you
clarify how that is different than ``the amendments made by this Act''?
This is unprecedented in its breadth and its scope, potentially
unleashing the intelligence community on people in the United States.
The practice in the community today is that when someone is in the
United States, they are provided the protections of U.S. law. This
takes it and shreds it for illegal aliens, or people who may be
suspected of being illegal aliens.
And talk about protecting rights, this bill shreds the rights of
people who are in this country. It is a significant problem, and this
is what happens when you go through a process on this type of technical
legislation and do not go through a process that allows the minority or
hearings to take place.
Mr. HASTINGS of Florida. Mr. Speaker, before yielding to my good
friend from California, the gentleman from Michigan, the ranking member
of the Intelligence Committee raised a plethora of questions. I would
say to him that he can expect his answers in the general debate, and I
am sure that the gentleman from Michigan (Mr. Conyers) and the
gentleman from Texas (Mr. Reyes) will enlighten him as to the scope of
questions that he put. I would like to, for I feel that he knows the
answer to every one of them, but I won't take the time.
I am very pleased to yield 3 minutes to the distinguished gentlewoman
from California, the Chair of the Intelligence, Information Sharing and
Terrorism Risk Assessment Subcommittee of the Committee on Homeland
Security, and if you can say all of that, then you must be somebody,
Jane Harman.
Ms. HARMAN. I thank the gentleman for yielding. I commend his service
on the Rules Committee and his long service, much of which I shared, on
the House Intelligence Committee.
Mr. Speaker, I rise in strong support of this rule and the underlying
bill. Many in this House, including me, have worked over years to get
surveillance right. This bill does a good job, a far better job than
the bill reported last month by the Senate Intelligence Committee.
Protecting America from the real threat of additional attacks
requires
[[Page H13972]]
the strongest possible tools. It also requires a flexible, agile and
constitutional set of authorities to guarantee that those who do the
surveillance clearly know the rules and obey them and that Americans
who may be targeted have appropriate safeguards.
This legislation arms our intelligence professionals with the ability
to listen to foreign targets, without a warrant, to uncover plots that
threaten U.S. national security.
The bill also protects the constitutional rights of Americans by
requiring the FISA Court, an article III court, to approve procedures
to ensure that Americans are not targeted for warrantless surveillance.
I have reviewed the changes to this legislation made by the manager's
amendment. This amendment makes the bill stronger in two important
ways: First, it clarifies that nothing in the bill--repeat, nothing--
inhibits the ability to monitor Osama bin Laden, al Qaeda,
proliferators of weapons of mass destruction or any terror group or
individual who threatens our national security. Second, and this is a
point that was just addressed by the gentleman from Michigan (Mr.
Hoekstra), it clarifies that nothing, nothing, in the bill extends any
rights to people who are not in the United States legally. Undocumented
aliens, people who aren't citizens or have overstayed their visas
receive no rights under this bill. Some may try to scare us into
thinking otherwise, but they're just wrong.
The bill does not change current law, and this is a point that may
have been overlooked by the gentleman from Michigan. It does not change
current law regarding the surveillance of undocumented aliens. Since
1978, FISA, which was enacted in that year, has extended fourth
amendment protections to persons legally in the United States. The
Protect America Act, which the Republican minority in this body
supported in August and which was enacted into law that month,
continues that same definition. The Protect America Act defines the
coverage of the bill just the way this legislation does. We're not
changing the coverage of U.S. persons as defined in 1978 and since
under the original Foreign Intelligence Surveillance Act.
Mr. Speaker, terrorists won't check our party registration before
they blow us up. Security and liberty are not a zero sum game. The
RESTORE America Act will protect the American people and defend the
Constitution. Vote ``aye.''
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 4
minutes to the gentleman from Florida, a member of the Rules Committee,
Mr. Diaz-Balart.
Mr. LINCOLN DIAZ-BALART of Florida. I thank my friend for yielding.
When we see significant changes in law included in the rule as we see
this morning, in other words, self-executed in the rule, it's important
that these questions be asked during the debate on the rule, because
after this rule is passed, changes in the law will already have been
made. The changes in the law are included in the rule.
I have some serious questions. Some of them were already brought out
by the ranking member of the Intelligence Committee. For example, there
is this section, section 18 in the legislation being brought to us
today. Basically it says, warrantless surveillance is authorized by
this legislation on any undocumented person in the United States. Now,
that's in the law. And I would ask any colleague listening to this,
it's in the self-executing part of this rule, section 18, ``This act
shall not be construed to prohibit surveillance of any alien not
permitted to be in or remain in the United States.''
Now, how do you know, Mr. Speaker, if they're undocumented or not?
Thus, now, this will give the right to surveillance, warrantless
surveillance with regard to any household where there may be an
undocumented worker? This is extremely serious. The question needs to
be asked.
The ranking member of the Intelligence Committee pointed out, that's
why this needs to be vetted, to be discussed, and not to be included in
a rule where we find out about this the morning that the rule is on the
floor and the rule makes it law, because it includes in the rule
changes in the law that we hadn't even been able to see before.
Now, other questions. There is a prior section in the legislation,
section 3, that creates what they call basket warrants for terrorists
throughout the world. But wait a minute. Section 18 says that if you
are someone not permitted to be in the United States, it should not be
construed to prohibit surveillance. My question is, does that section
void the prior basket warrant section? I don't know. What I know is
that it's in the rule.
When we vote on the rule in a few minutes, we will be self-executing
legislation, because these changes in the law are in the rule to be
self-executed, to be made already part of the law. So these are serious
questions. I wish that there would have been an opportunity for the
gentleman from Michigan, along with the chairman, to be vetting these
issues, because they're serious issues, serious questions, like the one
I asked before.
Now, unlimited, warrantless surveillance for the undocumented. And
those who live with the undocumented, I would ask? Those who share a
residence with the undocumented? Those who share a workplace with the
undocumented and who are citizens, are legal immigrants in the United
States? These are serious questions. And now we can ask them on the
morning that the legislation is on the floor. And, by the way, it's
being included in the rule, so that as soon as we vote on the rule, we
will already have voted on this legislation.
No, this is not the way to run this place, Mr. Speaker. It's another
example of an excessively exclusivist process keeping out debate
affecting legislation, including extremely serious legislation, like
this legislation that should be protecting the American people, and
that's why this is most unfortunate, this process today, Mr. Speaker.
Mr. HASTINGS of Florida. Mr. Speaker, I would say to my friend from
Florida that this rule doesn't change the law. Members will still have
an opportunity to vote on the base text of this bill. It doesn't change
the law of FISA.
I yield 2 minutes to the gentleman from Texas, my good friend and
classmate, Mr. Doggett.
Mr. DOGGETT. But there is an ``alien'' issue in this bill and only
one alien issue--those who have been so alien to the freedoms we hold
dear as Americans.
This is an Administration that has desecrated our Constitution,
debased our values and repeatedly undermined our freedoms. For a party
that purports to hate Big Government, these Republicans sure do seem to
love Big Brother. They demand unlimited Executive power and
unrestrained authority to intrude into our everyday lives. Today, we
dare to impose some limitations on one of so many examples of their
callous disregard of our liberties.
If even former Attorney General John Ashcroft, sitting there in his
hospital bed in intensive care, if even he could recognize the
illegality of the surveillance that Dick Cheney demanded, why shouldn't
we in Congress be able to do the same? And if one telecommunications
company had the courage to say ``no'' to this Administration's
wrongdoing, why not the others? And why would we want to protect these
corporate accomplices in the surreptitious destruction of our freedom
from any accountability whatsoever?
{time} 1045
Yesterday, we told this President ``no more blank checks for Iraq.''
And today we say no more unauthorized blanket surveillance of American
citizens. Those of us who love liberty must stand up to this
Administration's fear-mongering, to its continued leveraging of fear
for its own political purposes.
As Mr. Cheney's current chief of staff once said and what many
Americans now recognize is an irresponsible and unconstitutional
expansion of Presidential power: ``We're going to push and push and
push until some larger force makes us stop.''
Well, today we must be that force. This Congress must stay ``stop.''
Liberty is our strength. Fear is our enemy. This legislation strikes
an appropriate balance to keep our families safe and ensure they remain
free.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3\1/2\
minutes to the gentleman from Texas (Mr. Gohmert), a member of the
Judiciary Committee.
Mr. GOHMERT. First I've got to comment on some things we heard
previously. We heard the right honorable
[[Page H13973]]
chairman indicate that the last motion to recommit was designed to
delay. If it was merely designed to delay, then why in the world was
the bill pulled from the floor and sat on for 4 weeks? The answer: it
was not for delay. We had some serious considerations and questions and
points to be made about the risk that this was raising.
When I hear my friend from Texas talk about those who love liberty,
listen, some of us love liberty enough that we believe the Constitution
should not be extended on the battlefield to those who are trying to
destroy what our forefathers and foremothers have fought and died to
give us.
Now, unless the Democrats believe that they have improved this bill,
then there was no reason for a month delay. So either you improved it,
Mr. Speaker, either the Democrats improved it or there was no reason to
sit on it for a month. And if they did improve it, then the motion to
recommit was not political, but apparently helpful.
The problem is this doesn't fix the problems. And unless one party in
this body has 100 percent on God's truth all the time, they ought to
allow some input from the other side. We were told that was going to
happen. It hasn't happened here. We went to the Rules Committee the
last time and were shut out. Before the hearing started we were told,
put on your evidence but no amendments will be allowed. This time, once
again, no amendments are allowed. There is some expertise in this body
outside the Democratic Party. I would think it would be helpful to hear
some of that.
Anyway, let's look at the bill itself. We are told, well, we can't
get into it, we have limited time. Who did that? The Rules Committee
did that. The Rules Committee did that.
I would say to everyone, Mr. Speaker, that we have some smart people
on both sides of the aisle on the Rules Committee, but their talents
are being wasted when they keep having Rules Committee meetings that
come back over and over, no amendments. They are wasting their time.
They ought to ask for different committees because there is too much
intelligence and talent on that committee to waste it like that.
Now, in this new bill that we've got, we had to make amendments
without even seeing the new bill. How outrageous is that? But still, we
have the requirement that the Director of National Intelligence, and I
realize some people think he is suspect on the Democratic side because
he worked for the Clinton administration for 6 years. I think he is a
brilliant, sharp fellow.
But anyway, he testified before our Judiciary Committee that he
cannot swear, nobody can honestly swear that they reasonably believe
that a terrorist on foreign soil will never call the United States.
Therefore, since he can't testify to that, they can't use this
provision.
We are told this is protective because in the emergency provision
that is allowed, all you have to do is get that emergency relief, and
you can get that in 7 days instead of 15. Even under the emergency
relief, you have to reasonably believe there will never be a call into
the United States, and we had testimony that can never be done.
This guts our foreign intelligence capability. I think the easier
thing to do is just have everybody tell their U.S. friends that if you
are getting calls from foreign terrorists, tell them not to call, use
some other means of communication. That's the point.
Mr. HASTINGS of Florida. Mr. Speaker, would you be so kind as to
inform each side as to the amount of time remaining.
The SPEAKER pro tempore. The gentleman from Florida has 15\1/2\
minutes and the gentleman from Washington has 9\1/2\ minutes.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 4
minutes to the distinguished chairman of the Select Committee on
Intelligence, Mr. Reyes.
Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, this is an incredible turn of events from our colleagues
on the other side of the aisle who are now arguing for undocumented
people within the confines of this country.
Let me start out by making a flat statement. The RESTORE Act confers
no additional rights on undocumented aliens beyond those that they
already have under the Constitution or current U.S. law.
You know, there is an old lawyer's adage, and I am not a lawyer but I
am told by my friends who are, when the facts are not on your side, you
are taught to argue the law. When the law is not on your side, you are
taught to argue the facts.
Well, here on the floor like we have in the past, we have our
colleagues on the other side of the aisle that are so conflicted as to
be humorous if this wasn't such a serious, serious issue for our
country and for our national security.
When they complain about not having any input, let me just clear the
record and for the record state that they filed 12 amendments with our
committee, the Intelligence Committee. Yet, when it came time to offer
and proffer those amendments, they only had two. One was on immunity
which, by the way, we have never been given the documents to review, so
we would not have known what we were granting immunity to the telecom
companies for. But that one was of their amendments. The second
amendment was to substitute the Protect America Act for the RESTORE
Act.
That gives you a clear indication that, today just as in the previous
Congresses, the Congressional Republicans were and are in a rush to
rubber-stamp every single thing that the administration wanted. And so
now when things have changed and we have checks and balances, we have
our colleagues who formerly rushed, rubber-stamped anything and
everything that the administration wanted to do, now they are using
delaying tactics. And so when it is convenient, they argue the law.
When it is convenient, they argue the facts.
What is clear, crystal clear, here is that we have to have checks and
balances. In order to protect this country, in order to protect our
national security, there have to be checks and balances. That's what
the RESTORE Act does.
And when they complain about the rule, it is a sham argument. When
they complain about not having enough input, it is a sham argument.
When they argue the facts, it is because the law is not on their side.
When they argue the law, it is because the facts are not on their side.
So it is not about truth; it is not even about justice. It is about
scoring political victories.
There is a publication here on the Hill that said FISA is coming back
up on the floor and it will determine who can maneuver best. You know
what, as an American, I am sick and tired of maneuvering. I am sick and
tired of people saying we need to work in a bipartisan manner when they
work to undermine the process of checks and balances. The American
people are sick and tired.
I support this rule. I think we have a great bill here in the RESTORE
Act. I think this is something that we need to pass today, take it to
conference and start being serious about balancing the tools that our
agencies need to protect us with a careful balance of protecting
Americans' rights under the Constitution. Vote for this rule.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 2\1/2\
minutes to the gentleman from California (Mr. Royce).
Mr. ROYCE. Mr. Speaker, I rise in opposition as ranking member of the
Foreign Affairs Terrorism Subcommittee. And I can share this: there has
not been a terrorist attack on our soil since 9/11, and that is due in
part to the improved surveillance in real-time that we are able to
conduct against foreign terrorists. There is no disputing that.
I cannot help but feel that many of my colleagues have become so
blinded by their hatred of this administration that they have put the
threat from radical jihadists in the back of their mind. But given the
threat, it is unfathomable that we would weaken our most effective
preventive tool, and that is exactly what this bill does.
Before we unilaterally disarm, before we hobble our ability to listen
in real-time to the very real terrorists who are plotting against our
country around this globe, shouldn't we have something of an accounting
of the supposed civil liberties price we are paying?
I asked the Congressional Research Service for such an accounting.
They reported there is no available evidence of the type of privacy
violations critics
[[Page H13974]]
are pointing at. The case can't be proven.
But under this bill, for the first time this bill would stop
intelligence professionals from conducting surveillance of foreign
persons in foreign countries unless they can read the mind of their
terrorist targets and guarantee that they would not call into the
United States, that they would not call one of their people here.
This is more protection than Americans get under court-ordered
warrants in Mob and other criminal cases here in the United States that
we are now granting these terrorists under this act.
We are, frankly, confronting a virtual caliphate. Radical jihadists
are physically dispersed, but they are united through the Internet; and
they use that tool to recruit and plot their terrorist attacks. They
use electronic communications for just such a purpose. They are very
sophisticated in that.
So how has the West attempted to confront that? Well, the British use
electronic surveillance in real-time. They used it last year to stop
the attack on 10 transatlantic flights, and they prevented that attack
in August of last year by wiretapping. The French authorities used
wiretaps to lure jihadists basically into custody; and, thereby, they
prevented a bomb attack.
Given this threat, it is unfathomable that we would weakened our most
effective preventive tool, and that is exactly what this bill does.
Before we passed the Protect America Act in August, the Director of
National Intelligence told this Congress we are losing up to two-thirds
of our intelligence on terrorist targets.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 2
minutes to my good friend, the gentleman from New Jersey (Mr. Holt),
who is a member of the Select Intelligence Committee and had
substantial input with reference to this provision.
Mr. HOLT. Mr. Speaker, I thank my good friend from Florida, and I
rise in support of the rule and the underlying bill.
When Congress made the error of passing in haste and in fear the
unconstitutional Protect America Act this past August, some of us could
take a bit of comfort from this sorry episode in that it would expire.
That meant we would get another chance to get things right, to actually
pass a bill that would protect our country from terrorists and also
from those in government who would turn the fearsome powers of our
Federal intelligence and enforcement communities against the American
people. I am pleased to say that after some intense work, we have a
bill that does that.
The RESTORE Act now includes provisions via the manager's amendment
that will ensure that it is the courts, not an executive branch
political appointee, who decides whether or not the communications of
American citizens are to be seized and searched, and that such seizures
and searches must be done pursuant to a court order that meets the
standard of probable cause.
This bill now gives our citizens the best protection we can provide
them: good intelligence and the review of the executive branch's
actions by a court. We, everyone here, can tell each of our
constituents, Muslim Americans, soldiers in uniform, international
businessmen, college students: you have the protection of the courts.
Mr. Speaker, I thank both chairmen of the Intelligence and Judiciary
Committees for working so diligently to get this right. I urge my
colleagues to vote ``yes'' on the rule and ``yes'' on the RESTORE Act
later today.
{time} 1100
Mr. HASTINGS of Washington. Mr. Speaker, I am very pleased to yield
3\1/2\ minutes to the gentleman from California (Mr. Lungren), a member
of the Judiciary Committee.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I rise in
opposition to this rule.
People should understand that this is one of the single-most
important issues we will deal with this year or this Congress, and yet
it has been trivialized by the way it has been handled by the Rules
Committee.
We were shown what purported to be the bill that we would be working
on today 45 minutes before the Rules Committee convened, at which time
we were supposed to present our amendments to this bill, draft our
amendments to this bill. Maybe it made no difference because they had
no intention whatsoever of allowing us any input by way of amendment.
This was startling to me because, having done two 1-hour Special
Orders on this subject, I had a distinguished Member from their side of
the aisle come to me and say: You know that provision you pointed out,
that was placed into this bill as a result of a self-execution rule
that actually grants greater protection to Osama bin Laden or anybody
else than it would to an American citizen charged with a crime in
America. You were right on that. We made a mistake, and we are going to
change it.
So I look at this bill and it is still there.
What provision am I talking about? It is the provision that talks
about treatment of inadvertent interceptions. If we have an electronic
communication which we believed in the first instance was foreign to
foreign but we find that it actually is foreign to someone in the
United States, what happens? If we inadvertently collect a
communication in which at least one party to the communication is
located inside the United States or is a United States person, the
contents of such communication shall be handled in accordance with
minimization procedures adopted by the Attorney General. And that is
fine. But then it goes on to say: that require that no contents of any
communication to which the United States person is a party shall be
disclosed, disseminated, or used for any purpose, or retained for
longer than 7 days unless a court order under section 105 is obtained,
or unless the Attorney General determines that the information
indicates the threat of death or serious bodily harm to any person.
Now, if Osama bin Laden in a conversation or communication with
someone in the United States, which we inadvertently pick up because we
thought we were listening to foreign to foreign and we hear this, and
in that Osama bin Laden indicates where he is, we are prohibited by
this provision in this section of the bill from being able to
disseminate it to anybody, FBI or anybody else, or using it for any
purpose unless we go to a court. That is absolutely absurd. So absurd
that a Member of that side of the aisle, the chairman of the
Constitutional Law Subcommittee of Judiciary said: You are right, we
will take it out. It is not taken out.
That is just one of the problems when you have a rule that doesn't
allow people to look at the bill you are going to present to them nor
does it allow any amendments to be brought forward.
This not only points out the seriousness of this issue, but it shows
that, when you play political games with bringing it to the floor, you
might have unintended consequences.
Do I believe that side wants to give greater protection to Osama bin
Laden than an American citizen charged with a crime in America? I hope
not. But it is in this bill. I was told it was going to be taken out.
It has not been taken out. We ought to defeat this rule for that reason
whatsoever and defeat the bill if it remains in.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 1
minute to the gentleman from Missouri, the distinguished chairman of
the Armed Services Committee, Mr. Skelton.
Mr. SKELTON. Mr. Speaker, as chairman of the Armed Services
Committee, our purpose is to defend America and American interests,
American citizens. And this bill is a good bill. I speak for this rule.
I speak for it because this is a balanced rule. On the one hand, it
helps protect Americans; on the other hand, it is a balance in favor of
the Constitution. We have to keep, of course, those two goals in mind,
but keeping in mind the fact that we need good intelligence, and this
is a means and the law to allow us to get good intelligence and protect
America and American interests.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance
of the time.
The SPEAKER pro tempore (Mr. Pastor). The gentleman is recognized for
3\1/2\ minutes.
Mr. HASTINGS of Washington. Mr. Speaker, we have talked a lot about
[[Page H13975]]
process here on this very, very important issue. Everybody on both
sides of the aisle has talked about the need to make sure that we have
the right intelligence, and yet through this process there are a number
of questions, I think very legitimate questions, that were raised;
because if this rule is adopted, then we will have no opportunity to
even vote on the manager's amendment. It will be self-executing.
It seems to me like it is a process by which, because we all know
pretty much that rule votes are party votes. So it is like denying
anybody an opportunity. If somebody on the other side has some
questions about the questions that were raised here, they will be
denied the opportunity because you have got to stay with the party and
support the rule. Mr. Speaker, I just simply say that is a very, very
bad process.
Mr. Speaker, we also need to pass the stand-alone veterans funding
bill. It has now been over 150 days since the veterans funding bill was
approved by the House. The Senate passed a similar bill and appointed
its conferees 2 months ago. Sadly, Democrat leadership in the House has
refused to name conferees and instead has chosen to put politics and
partisanship ahead of ensuring that our veterans' needs are met.
Once the Democrat leaders appoint conferees, the House can move
forward and pass the stand-alone veterans bill. Mr. Boehner took a
positive historic step in that direction; now Speaker Pelosi must
follow. Therefore, I will be asking my colleagues to vote ``no'' on the
previous question so that I can amend the rule to allow the House to
immediately act to go to conference with the Senate on H.R. 2642, the
Military Construction and Veterans Affairs Funding Bill and appoint
conferees.
Mr. Speaker, I ask unanimous consent to have the text of the
amendment and extraneous material inserted in the Record 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. I urge my colleagues to oppose the
previous question and the 42nd, Mr. Speaker, closed rule that we are
debating here today.
With that, I yield back the balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, for a year and a half, the
Intelligence and Judiciary Committees have been working with the
administration to craft a bill that will ensure our Nation is
protected, without sacrificing American constitutional liberties. Let
me just talk about some of the people that have had input into that
particular measure. The chairman of the Judiciary Committee, John
Conyers; the chairman of the Select Committee on Intelligence,
Silvestre Reyes; the ranking members of both of those committees,
including Mr. Hoekstra; all of the members of the Select Committee on
Intelligence, including myself; Ms. Harman, who serves on Homeland
Security.
Countless testimonies during that year and a half, hundreds of
discussions and negotiations between the staffs of the respective
committees, and a markup of this particular provision that the
Republicans brought only two amendments to in the markup in the Select
Committee on Intelligence.
We negotiated. We compromised. We reached an agreement. Then the
administration backed out of the agreement. So we negotiated some more.
We compromised some more. We reached another agreement. We reached
agreements until we were blue in the face here in August. Everybody was
so tired, and the administration continued to back out of the
agreement. Then, less than 24 hours before the bill was supposed to
come to the floor in August, the administration reneged on the
agreement and refused to work with us to protect the American people.
Last month, Democrats again brought this bill to the floor, and yet
again Republicans tried to play politics with the safety of the
American people. Just as they did this past summer, Republicans and the
administration now seem content on letting the clock run out on the
current FISA law rather than working with us to get something done.
They choose and chose obstructionism rather than bipartisan
cooperation.
Mr. Speaker, the American public needs to know that there are no
persons in the United States Congress that do not want to protect the
security and liberty of the United States.
So I do not cast aspersions on my colleagues for having a different
view as to how administratively we should proceed to protect those
securities and liberties, but everybody here is mindful of all of our
responsibilities. So the hyperbole is off the chain sometimes when I
hear people talk and it is as if we didn't really do substantively what
was required of us as individuals on behalf of the American people.
None of us should be ashamed of any of the work that was done with
reference to the RESTORE Act. We made a bad bill better. And it is not
as good, for example, as I would like for it to be, but it is as good
as we are going to get with this administration at this time.
The esteemed chairperson of the Intelligence Committee,
Representative Reyes, has noted on more than one occasion: You can have
your own opinion, but you can't have your own facts.
Mr. Speaker, those are the well-documented facts that I just got
through dealing with. The RESTORE Act protects the American people. It
protects them at home and on the streets. It protects their safety and
the constitutional rights, which have been intact more than 225 years,
and no one need fear when the fearmongers come here and try to divide
people by having somebody think that undocumented aliens are going to
be put in some category. I personally am just tired of the smearing
that is being done with reference to immigration in this country. We
need a solid immigration policy, and we need a policy that contemplates
all of the particulars of that immigration set of circumstances.
Mr. Speaker, this body has the responsibility today to pass this rule
and the underlying legislation today. The security of this Nation
requires it of all of us, and I believe all of us want that security
and liberty. I urge a ``yes'' vote on the previous question and on the
rule.
The material previously referred to by Mr. Hastings of Washington is
as follows:
Amendment to H. Res. 824 Offered by Mr. Hastings of Washington
At the end of the resolution, add the following:
Sec. 2. The House disagrees to the Senate amendment to the
bill, H.R. 2642, making appropriations for military
construction, the Department of Veterans Affairs, and related
agencies for the fiscal year ending September 30, 2008, and
for other purposes, and agrees to the conference requested by
the Senate thereon. The Speaker shall appoint conferees
immediately, but may declare a recess under clause 12(a) of
rule I for the purpose of consulting the Minority Leader
prior to such appointment. The motion to instruct conferees
otherwise in order pending the appointment of conferees
instead shall be in order only at a time designated by the
Speaker in the legislative schedule within two additional
legislative days after adoption of this resolution.
(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
[[Page H13976]]
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. I yield back the balance of my time and 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 ayes appeared to have it.
Mr. HASTINGS of Washington. Mr. Speaker, on that I demand the yeas
and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________
[Congressional Record: November 15, 2007 (House)]
[Page H14037-H14062]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr15no07-159]
RESTORE ACT OF 2007
The SPEAKER pro tempore. Pursuant to House Resolution 746,
proceedings will now resume on the bill (H.R. 3773) to amend the
Foreign Intelligence Surveillance Act of 1978 to establish a procedure
for authorizing certain acquisitions of foreign intelligence, and for
other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R 3773
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective Act of 2007'' or ``RESTORE Act of
2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Clarification of electronic surveillance of non-United States
persons outside the United States.
[[Page H14038]]
Sec. 3. Procedure for authorizing acquisitions of communications of
non-United States persons located outside the United
States.
Sec. 4. Emergency authorization of acquisitions of communications of
non-United States persons located outside the United
States.
Sec. 5. Oversight of acquisitions of communications of non-United
States persons located outside of the United States.
Sec. 6. Foreign Intelligence Surveillance Court en banc.
Sec. 7. Audit of warrantless surveillance programs.
Sec. 8. Record-keeping system on acquisition of communications of
United States persons.
Sec. 9. Authorization for increased resources relating to foreign
intelligence surveillance.
Sec. 10. Reiteration of FISA as the exclusive means by which electronic
surveillance may be conducted for gathering foreign
intelligence information.
Sec. 11. Technical and conforming amendments.
Sec. 12. Sunset; transition procedures.
SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-
UNITED STATES PERSONS OUTSIDE THE UNITED
STATES.
Section 105A of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS
OUTSIDE THE UNITED STATES
``Sec. 105A. (a) Foreign to Foreign Communications.--
Notwithstanding any other provision of this Act, a court
order is not required for the acquisition of the contents of
any communication between persons that are not United States
persons and are not located within the United States for the
purpose of collecting foreign intelligence information,
without respect to whether the communication passes through
the United States or the surveillance device is located
within the United States.
``(b) Communications of Non-United States Persons Outside
of the United States.--Notwithstanding any other provision of
this Act other than subsection (a), electronic surveillance
that is directed at the acquisition of the communications of
a person that is reasonably believed to be located outside
the United States and not a United States person for the
purpose of collecting foreign intelligence information (as
defined in paragraph (1) or (2)(A) of section 101(e)) by
targeting that person shall be conducted pursuant to--
``(1) an order approved in accordance with section 105 or
105B; or
``(2) an emergency authorization in accordance with section
105 or 105C.''.
SEC. 3. PROCEDURE FOR AUTHORIZING ACQUISITIONS OF
COMMUNICATIONS OF NON-UNITED STATES PERSONS
LOCATED OUTSIDE THE UNITED STATES.
Section 105B of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``PROCEDURE FOR AUTHORIZING ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES
``Sec. 105B. (a) In General.--Notwithstanding any other
provision of this Act, the Director of National Intelligence
and the Attorney General may jointly apply to a judge of the
court established under section 103(a) for an ex parte order,
or the extension of an order, authorizing for a period of up
to one year the acquisition of communications of persons that
are reasonably believed to be located outside the United
States and not United States persons for the purpose of
collecting foreign intelligence information (as defined in
paragraph (1) or (2)(A) of section 101(e)) by targeting those
persons.
``(b) Application Inclusions.--An application under
subsection (a) shall include--
``(1) a certification by the Director of National
Intelligence and the Attorney General that--
``(A) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United States;
``(B) the targets of the acquisition are reasonably
believed to be persons that are not United States persons;
``(C) the acquisition involves obtaining the foreign
intelligence information from, or with the assistance of, a
communications service provider or custodian, or an officer,
employee, or agent of such service provider or custodian, who
has authorized access to the communications to be acquired,
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; and
``(D) a significant purpose of the acquisition is to obtain
foreign intelligence information (as defined in paragraph (1)
or (2)(A) of section 101(e)); and
``(2) a description of--
``(A) the procedures that will be used by the Director of
National Intelligence and the Attorney General during the
duration of the order to determine that there is a reasonable
belief that the targets of the acquisition are persons that
are located outside the United States and not United States
persons;
``(B) the nature of the information sought, including the
identity of any foreign power against whom the acquisition
will be directed;
``(C) minimization procedures that meet the definition of
minimization procedures under section 101(h) to be used with
respect to such acquisition; and
``(c) Specific Place Not Required.--An application 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.
``(d) Review of Application.--Not later than 15 days after
a judge receives an application under subsection (a), the
judge shall review such application and shall approve the
application if the judge finds that--
``(1) the proposed procedures referred to in subsection
(b)(2)(A) are reasonably designed to determine whether the
targets of the acquisition are located outside the United
States and not United States persons;
``(2) the proposed minimization procedures referred to in
subsection (b)(2)(C) meet the definition of minimization
procedures under section 101(h); and
``(3) the guidelines referred to in subsection (b)(2)(D)
are reasonably designed to ensure that an application is
filed under section 104, if otherwise required by this Act,
when the Federal Government seeks to conduct electronic
surveillance of a person reasonably believed to be located in
the United States.
``(e) Order.--
``(1) In general.--A judge approving an application under
subsection (d) shall issue an order--
``(A) authorizing the acquisition of the contents of the
communications as requested, or as modified by the judge;
``(B) requiring the communications service provider or
custodian, or officer, employee, or agent of such service
provider or custodian, who has authorized access to the
information, facilities, or technical assistance necessary to
accomplish the acquisition to provide such information,
facilities, or technical assistance necessary to accomplish
the acquisition and to produce a minimum of interference with
the services that provider, custodian, officer, employee, or
agent is providing the target of the acquisition;
``(C) requiring such communications service provider,
custodian, officer, employee, or agent, upon the request of
the applicant, to maintain under security procedures approved
by the Attorney General and the Director of National
Intelligence any records concerning the acquisition or the
aid furnished;
``(D) directing the Federal Government to--
``(i) compensate, at the prevailing rate, a person for
providing information, facilities, or assistance pursuant to
such order; and
``(ii) provide a copy of the portion of the order directing
the person to comply with the order to such person; and
``(E) directing the applicant to follow--
``(i) the procedures referred to in subsection (b)(2)(A) as
proposed or as modified by the judge;
``(ii) the minimization procedures referred to in
subsection (b)(2)(C) as proposed or as modified by the judge;
and
``(iii) the guidelines referred to in subsection (b)(2)(D)
as proposed or as modified by the judge.
``(2) Failure to comply.--If a person fails to comply with
an order issued under paragraph (1), the Attorney General may
invoke the aid of the court established under section 103(a)
to compel compliance with the order. 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 may be found.
``(3) Liability of order.--Notwithstanding any other law,
no cause of action shall lie in any court against any person
for providing any information, facilities, or assistance in
accordance with an order issued under this subsection.
``(4) Retention of order.--The Director of National
Intelligence and the court established under subsection
103(a) shall retain an order issued under this section for a
period of not less than 10 years from the date on which such
order is issued.
``(5) Assessment of compliance with minimization
procedures.--At or before the end of the period of time for
which an acquisition is approved by an order or an extension
under this section, the judge may assess compliance with the
minimization procedures referred to in paragraph (1)(E)(ii)
and the guidelines referred to in paragraph (1)(E)(iii) by
reviewing the circumstances under which information
concerning United States persons was acquired, retained, or
disseminated.''.
SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF
COMMUNICATIONS OF NON-UNITED STATES PERSONS
LOCATED OUTSIDE THE UNITED STATES.
Section 105C of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES
``Sec. 105C. (a) Application After Emergency
Authorization.--As soon as is practicable, but not more than
7 days after the Director of National Intelligence and the
Attorney General authorize an acquisition
[[Page H14039]]
under this section, an application for an order authorizing
the acquisition in accordance with section 105B shall be
submitted to the judge referred to in subsection (b)(2) of
this section for approval of the acquisition in accordance
with section 105B.
``(b) Emergency Authorization.--Notwithstanding any other
provision of this Act, the Director of National Intelligence
and the Attorney General may jointly authorize the emergency
acquisition of foreign intelligence information for a period
of not more than 45 days if--
``(1) the Director of National Intelligence and the
Attorney General jointly determine that--
``(A) an emergency situation exists with respect to an
authorization for an acquisition under section 105B before an
order approving the acquisition under such section can with
due diligence be obtained;
``(B) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United States;
``(C) the targets of the acquisition are reasonably
believed to be persons that are not United States persons;
``(D) there are reasonable procedures in place for
determining that the acquisition of foreign intelligence
information under this section will be acquired by targeting
only persons that are reasonably believed to be located
outside the United States and not United States persons;
``(E) the acquisition involves obtaining the foreign
intelligence information from, or with the assistance of, a
communications service provider or custodian, or an officer,
employee, or agent of such service provider or custodian, who
has authorized access to the communications to be acquired,
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;
``(F) a significant purpose of the acquisition is to obtain
foreign intelligence information (as defined in paragraph (1)
or (2)(A) of section 101(e)); and
``(G) minimization procedures to be used with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h); and
``(2) the Director of National Intelligence and the
Attorney General, or their designees, inform a judge having
jurisdiction to approve an acquisition under section 105B at
the time of the authorization under this section that the
decision has been made to acquire foreign intelligence
information.
``(c) Information, Facilities, and Technical Assistance.--
Pursuant to an authorization of an acquisition under this
section, the Attorney General may direct a communications
service provider, custodian, or an officer, employee, or
agent of such service provider or custodian, who has the
lawful authority to access the information, facilities, or
technical assistance necessary to accomplish such acquisition
to--
``(1) furnish the Attorney General forthwith with such
information, facilities, or technical assistance in a manner
that will protect the secrecy of the acquisition and produce
a minimum of interference with the services that provider,
custodian, officer, employee, or agent is providing the
target of the acquisition; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid
furnished.''.
SEC. 5. OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE OF THE
UNITED STATES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105C the following new section:
``OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED STATES
PERSONS LOCATED OUTSIDE OF THE UNITED STATES
``Sec. 105D. (a) Application; Procedures; Orders.--Not
later than 7 days after an application is submitted under
section 105B(a) or an order is issued under section 105B(e),
the Director of National Intelligence and the Attorney
General shall submit to the appropriate committees of
Congress--
``(1) in the case of an application, a copy of the
application, including the certification made under section
105B(b)(1); and
``(2) in the case of an order, a copy of the order,
including the procedures and guidelines referred to in
section 105B(e)(1)(E).
``(b) Quarterly Audits.--
``(1) Audit.--Not later than 120 days after the date of the
enactment of this section, and every 120 days thereafter
until the expiration of all orders issued under section 105B,
the Inspector General of the Department of Justice shall
complete an audit on the implementation of and compliance
with the procedures and guidelines referred to in section
105B(e)(1)(E) and shall submit to the appropriate committees
of Congress, the Attorney General, the Director of National
Intelligence, and the court established under section 103(a)
the results of such audit, including, for each order
authorizing the acquisition of foreign intelligence under
section 105B--
``(A) the number of targets of an acquisition under such
order that were later determined to be located in the United
States;
``(B) the number of persons located in the United States
whose communications have been acquired under such order;
``(C) the number and nature of reports disseminated
containing information on a United States person that was
collected under such order; and
``(D) the number of applications submitted for approval of
electronic surveillance under section 104 for targets whose
communications were acquired under such order.
``(2) Report.--Not later than 30 days after the completion
of an audit under paragraph (1), the Attorney General shall
submit to the appropriate committees of Congress and the
court established under section 103(a) a report containing
the results of such audit.
``(c) Compliance Reports.--Not later than 60 days after the
date of the enactment of this section, and every 120 days
thereafter until the expiration of all orders issued under
section 105B, the Director of National Intelligence and the
Attorney General shall submit to the appropriate committees
of Congress and the court established under section 103(a) a
report concerning acquisitions under section 105B during the
previous 120-day period. Each report submitted under this
section shall include a description of any incidents of non-
compliance with an order issued under section 105B(e),
including incidents of non-compliance by--
``(1) an element of the intelligence community with
minimization procedures referred to in section
105B(e)(1)(E)(i);
``(2) an element of the intelligence community with
procedures referred to in section 105B(e)(1)(E)(ii);
``(3) an element of the intelligence community with
guidelines referred to in section 105B(e)(1)(E)(iii); and
``(4) a person directed to provide information, facilities,
or technical assistance under such order.
``(d) Report on Emergency Authority.--The Director of
National Intelligence and the Attorney General shall annually
submit to the appropriate committees of Congress a report
containing the number of emergency authorizations of
acquisitions under section 105C and a description of any
incidents of non-compliance with an emergency authorization
under such section.
``(e) Appropriate Committees of Congress Defined.--In this
section, the term `appropriate committees of Congress'
means--
``(1) the Permanent Select Committee on Intelligence of the
House of Representatives;
``(2) the Select Committee on Intelligence of the Senate;
and
``(3) the Committees on the Judiciary of the House of
Representatives and the Senate.''.
SEC. 6. FOREIGN INTELLIGENCE SURVEILLANCE COURT EN BANC.
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) In any case where the court established under
subsection (a) or a judge of such court is required to review
a matter under this Act, the court may, at the discretion of
the court, sit en banc to review such matter and issue any
orders related to such matter.''.
SEC. 7. AUDIT OF WARRANTLESS SURVEILLANCE PROGRAMS.
(a) Audit.--Not later than 180 days after the date of the
enactment of this Act, the Inspector General of the
Department of Justice shall complete an audit of all programs
of the Federal Government involving the acquisition of
communications conducted without a court order on or after
September 11, 2001, including the Terrorist Surveillance
Program referred to by the President in a radio address on
December 17, 2005. Such audit shall include acquiring all
documents relevant to such programs, including memoranda
concerning the legal authority of a program, authorizations
of a program, certifications to telecommunications carriers,
and court orders.
(b) Report.--
(1) In general.--Not later than 30 days after the
completion of the audit under subsection (a), the Inspector
General shall submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives and the Select Committee on Intelligence
and the Committee on the Judiciary of the Senate a report
containing the results of such audit, including all documents
acquired pursuant to conducting such audit.
(2) Form.--The report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(c) Expedited Security Clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by the
Inspector General or the appropriate staff of the Office of
the Inspector General of the Department of Justice for a
security clearance necessary for the conduct of the audit
under subsection (a) is conducted as expeditiously as
possible.
SEC. 8. RECORD-KEEPING SYSTEM ON ACQUISITION OF
COMMUNICATIONS OF UNITED STATES PERSONS.
(a) Record-Keeping System.--The Director of National
Intelligence and the Attorney General shall jointly develop
and maintain a record-keeping system that will keep track
of--
(1) the instances where the identity of a United States
person whose communications were acquired was disclosed by an
element of
[[Page H14040]]
the intelligence community (as defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)) that
collected the communications to other departments or agencies
of the United States; and
(2) the departments and agencies of the Federal Government
and persons to whom such identity information was disclosed.
(b) Report.--The Director of National Intelligence and the
Attorney General shall annually submit to the Permanent
Select Committee on Intelligence and the Committee on the
Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate a report on the record-keeping system created
under subsection (a), including the number of instances
referred to in paragraph (1).
SEC. 9. AUTHORIZATION FOR INCREASED RESOURCES RELATING TO
FOREIGN INTELLIGENCE SURVEILLANCE.
There are authorized to be appropriated the Department of
Justice, for the activities of the Office of the Inspector
General, the Office of Intelligence Policy and Review, and
other appropriate elements of the National Security Division,
and the National Security Agency such sums as may be
necessary to meet the personnel and information technology
demands to ensure the timely and efficient processing of--
(1) applications and other submissions to the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a));
(2) the audit and reporting requirements under--
(A) section 105D of such Act; and
(B) section 7; and
(3) the record-keeping system and reporting requirements
under section 8.
SEC. 10. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH
ELECTRONIC SURVEILLANCE MAY BE CONDUCTED FOR
GATHERING FOREIGN INTELLIGENCE INFORMATION.
(a) Exclusive Means.--Notwithstanding any other provision
of law, the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) shall be the exclusive means by which
electronic surveillance may be conducted for the purpose of
gathering foreign intelligence information.
(b) Specific Authorization Required for Exception.--
Subsection (a) shall apply until specific statutory
authorization for electronic surveillance, other than as an
amendment to the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.), is enacted. Such specific
statutory authorization shall be the only exception to
subsection (a).
SEC. 11. TECHNICAL AND CONFORMING AMENDMENTS.
(a) 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 striking the items
relating to sections 105A, 105B, and 105C and inserting the
following new items:
``Sec. 105A. Clarification of electronic surveillance of non-United
States persons outside the United States.
``Sec. 105B. Procedure for authorizing acquisitions of communications
of non-United States persons located outside the United
States.
``Sec. 105C. Emergency authorization of acquisitions of communications
of non-United States persons located outside the United
States.
``Sec. 105D. Oversight of acquisitions of communications of persons
located outside of the United States.''.
(b) Section 103(e) of FISA.--Section 103(e) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(e)) is
amended--
(1) in paragraph (1), by striking ``105B(h) or''; and
(2) in paragraph (2), by striking ``105B(h) or''.
(c) Repeal of Certain Provisions of the Protect America
Act.--Sections 4 and 6 of the Protect America Act (Public Law
110-55) are hereby repealed.
SEC. 12. SUNSET; TRANSITION PROCEDURES.
(a) Sunset of New Provisions.--
(1) In general.--Except as provided in paragraph (2),
effective on December 31, 2009--
(A) sections 105A, 105B, 105C, and 105D of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) are hereby repealed; and
(B) the table of contents in the first section of such Act
is amended by striking the items relating to sections 105A,
105B, 105C, and 105D.
(2) Acquisitions authorized prior to sunset.--Any
authorization or order issued under section 105B of the
Foreign Intelligence Surveillance Act of 1978, as amended by
this Act, in effect on December 31, 2009, shall continue in
effect until the date of the expiration of such authorization
or order.
(b) Acquisitions Authorized Prior to Enactment.--
(1) Effect.--Notwithstanding the amendments made by this
Act, an authorization of the acquisition of foreign
intelligence information under section 105B of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) made before the date of the enactment of this Act shall
remain in effect until the date of the expiration of such
authorization or the date that is 180 days after such date of
enactment, whichever is earlier.
(2) Report.--Not later than 30 days after the date of the
expiration of all authorizations of acquisition of foreign
intelligence information under section 105B of the Foreign
Intelligence Surveillance Act of 1978 (as added by Public Law
110-55) made before the date of the enactment of this Act in
accordance with paragraph (1), the Director of National
Intelligence and the Attorney General shall submit to the
Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the
Judiciary of the Senate a report on such authorizations,
including--
(A) the number of targets of an acquisition under section
105B of such Act (as in effect on the day before the date of
the enactment of this Act) that were later determined to be
located in the United States;
(B) the number of persons located in the United States
whose communications have been acquired under such section;
(C) the number of reports disseminated containing
information on a United States person that was collected
under such section;
(D) the number of applications submitted for approval of
electronic surveillance under section 104 of such Act based
upon information collected pursuant to an acquisition
authorized under section 105B of such Act (as in effect on
the day before the date of the enactment of this Act); and
(E) a description of any incidents of non-compliance with
an authorization under such section, including incidents of
non-compliance by--
(i) an element of the intelligence community with
procedures referred to in subsection (a)(1) of such section;
(ii) an element of the intelligence community with
minimization procedures referred to in subsection (a)(5) of
such section; and
(iii) a person directed to provide information, facilities,
or technical assistance under subsection (e) of such section.
(3) Intelligence community defined.--In this subsection,
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)).
The SPEAKER pro tempore. Pursuant to House Resolution 824, the
further amendment printed in House Report 110-449 is adopted.
The text of the bill, as amended, is as follows:
H.R 3773
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective Act of 2007'' or ``RESTORE Act of
2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Clarification of electronic surveillance of non-United States
persons outside the United States.
Sec. 3. Additional authorization of acquisitions of communications of
non-United States persons located outside the United
States who may be communicating with persons inside the
United States.
Sec. 4. Emergency authorization of acquisitions of communications of
non-United States persons located outside the United
Statesfwho may be communicating with persons inside the
United States.
Sec. 5. 0versight of acquisitions of communications of non-United
States persons located outside of the United States fNho
may be communicating with persons inside the United
States.
Sec. 6. Foreign Intelligence Surveillance Court en banco
Sec. 7. Foreign Intelligence Surveillance Court matters.
Sec. 8. Reiteration of FISA as the exclusive means by which
electronic surveillance may be conducted for gathering
foreign intelligence information.
Sec. 9. Enhancement of electronic surveillance authority in wartime
and other collection.
Sec. 10. Audit of warrantless surveillance programs.
Sec. 11. Record-keeping system on acquisition of communications of
United States persons.
Sec. 12. Authorization for increased resources relating to foreign
intelligence surveillance.
Sec. 13. Document management system for applications for orders
approving electronic surveillance.
Sec. 14. Training of intelligence community personnel in foreign
intelligence collection matters.
Sec. 15. Information for Congress on the terrorist surveillance
program and similar programs.
Sec. 16. Technical and conforming amendments.
Sec. 17. Sunset; transition procedures.
[[Page H14041]]
SEC. 2. CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-
UNITED STATES PERSONS OUTSIDE THE UNITED
STATES.
Section 105A of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF NON-UNITED STATES PERSONS
OUTSIDE THE UNITED STATES
``Sec. 105A. (a) Foreign to Foreign Communications.--
``(1) In general.--Notwithstanding any other provision of
this Act, a court order is not required for the acquisition
of the contents of any communication between persons that are
not known to be United States persons and are reasonably
believed to be located outside the United States for the
purpose of collecting foreign intelligence information,
without respect to whether the communication passes through
the United States or the surveillance device is located
within the United States.
``(2) Treatment of inadvertent interceptions.--If
electronic surveillance referred to in paragraph (1)
inadvertently collects a communication in which at least one
party to the communication is located inside the United
States or is a United States person, the contents of such
communication shall be handled in accordance with
minimization procedures adopted by the Attorney General that
require that no contents of any communication to which a
United States person is a party shall be disclosed,
disseminated, or used for any purpose or retained for longer
than 7 days unless a court order under section 105 is
obtained or unless the Attorney General determines that the
information indicates a threat of death or serious bodily
harm to any person.
``(b) Communications of Non-United States Persons Outside
of the United States.--Notwithstanding any other provision of
this Act other than subsection (a), electronic surveillance
that is directed at the acquisition of the communications of
a person that is reasonably believed to be located outside
the United States and not a United States person for the
purpose of collecting foreign intelligence information (as
defined in paragraph (1) or (2)(A) of section 101(e)) by
targeting that person shall be conducted pursuant to--
``(1) an order approved in accordance with section 105 or
105B; or
``(2) an emergency authorization in accordance with section
105 or 105C.''.
SEC. 3. ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF
COMMUNICATIONS OF NON-UNITED STATES PERSONS
LOCATED OUTSIDE THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE THE UNITED
STATES.
Section 105B of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``ADDITIONAL AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES.
``Sec. 105B. (a) In General.--Notwithstanding any other
provision of this Act, the Director of National Intelligence
and the Attorney General may jointly apply to a judge of the
court established under section 103(a) for an ex parte order,
or the extension of an order, authorizing for a period of up
to one year the acquisition of communications of persons that
are reasonably believed to be located outside the United
States and not United States persons for the purpose of
collecting foreign intelligence information (as defined in
paragraph (1) or (2)(A) of section 101(e)) by targeting those
persons.
``(b) Application Inclusions.--An application under
subsection (a) shall include--
``(1) a certification by the Director of National
Intelligence and the Attorney General that--
``(A) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United States
who may be communicating with persons inside the United
States;
``(B) the targets of the acquisition are reasonably
believed to be persons that are not United States persons;
``(C) the acquisition involves obtaining the foreign
intelligence information from, or with the assistance of, a
communications service provider or custodian, or an officer,
employee, or agent of such service provider or custodian, who
has authorized access to the communications to be acquired,
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; and
``(D) a significant purpose of the acquisition is to obtain
foreign intelligence information (as defined in paragraph (1)
or (2)(A) of section 101(e)); and
``(2) a description of--
``(A) the procedures that will be used by the Director of
National Intelligence and the Attorney General during the
duration of the order to determine that there is a reasonable
belief that the persons that are the targets of the
acquisition are located outside the United States and not
United States persons;
``(B) the nature of the information sought, including the
identity of any foreign power against whom the acquisition
will be directed;
``(C) minimization procedures that meet the definition of
minimization procedures under section 101(h) to be used with
respect to such acquisition; and
``(D)(i) the guidelines that will be used to ensure that an
application is filed under section 104, if otherwise required
by this Act, when a significant purpose of an acquisition is
to acquire the communications of a specific United States
person reasonably believed to be located in the United
States; and
``(ii) the criteria for determining if such a significant
purpose exists, which shall require consideration of
whether--
``(I) the department or agency of the Federal Government
conducting the acquisition has made an inquiry to another
department or agency of the Federal Government to gather
information on the specific United States person;
``(II) the department or agency of the Federal Government
conducting the acquisition has provided information that
identifies the specific United States person to another
department or agency of the Federal Government;
``(III) the department or agency of the Federal Government
conducting the acquisition determines that the specific
United States person has been the subject of ongoing interest
or repeated investigation by a department or agency of the
Federal Government; and
``(IV) the specific United States person is a natural
person.
``(c) Specific Place Not Required.--An application 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.
``(d) Review of Application; Appeals.--
``(1) Review of application.--Not later than 15 days after
a judge receives an application under subsection (a), the
judge shall review such application and shall approve the
application if the judge finds that--
``(A) the proposed procedures referred to in subsection
(b)(2)(A) are reasonably designed to determine whether the
targets of the acquisition are located outside the United
States and not United States persons;
``(B) the proposed minimization procedures referred to in
subsection (b)(2)(C) meet the definition of minimization
procedures under section 101(h); and
``(C)(i) the guidelines referred to in subsection (b)(2)(D)
are reasonably designed to ensure that an application is
filed under section 104, if otherwise required by this Act,
when a significant purpose of an acquisition is to acquire
the communications of a specific United States person
reasonably believed to be located in the United States; and
``(ii) the criteria for determining if such a significant
purpose exists require consideration of whether--
``(I) the department or agency of the Federal Government
conducting the acquisition has made an inquiry to another
department or agency of the Federal Government to gather
information on the specific United States person;
``(II) the department or agency of the Federal Government
conducting the acquisition has provided information that
identifies the specific United States person to another
department or agency of the Federal Government;
``(III) the department or agency of the Federal Government
conducting the acquisition determines that the specific
United States person has been the subject of ongoing interest
or repeated investigation by a department or agency of the
Federal Government; and
``(IV) the specific United States person is a natural
person.
``(2) Temporary order; appeals.--
``(A) Temporary order.--A judge denying an application
under paragraph (1) may, at the application of the United
States, issue a temporary order to authorize an acquisition
under section 105B in accordance with the application under
subsection (a) during the pendency of any appeal of the
denial of such application.
``(B) Appeals.--The United States may appeal the denial of
an application for an order under paragraph (1) or a
temporary order under subparagraph (A) in accordance with
section 103.
``(e) Order.--
``(1) In general.--A judge approving an application under
subsection (d) shall issue an order--
``(A) authorizing the acquisition of the contents of the
communications as requested, or as modified by the judge;
``(B) requiring the communications service provider or
custodian, or officer, employee, or agent of such service
provider or custodian, who has authorized access to the
information, facilities, or technical assistance necessary to
accomplish the acquisition to provide such information,
facilities, or technical assistance necessary to accomplish
the acquisition and to produce a minimum of interference with
the services that provider, custodian, officer, employee, or
agent is providing the target of the acquisition;
``(C) requiring such communications service provider,
custodian, officer, employee, or agent, upon the request of
the applicant, to maintain under security procedures approved
by the Attorney General and the Director of National
Intelligence any records concerning the acquisition or the
aid furnished;
``(D) directing the Federal Government to--
``(i) compensate, at the prevailing rate, a person for
providing information, facilities, or assistance pursuant to
such order;
[[Page H14042]]
``(ii) provide a copy of the portion of the order directing
the person to comply with the order to such person; and
``(iii) provide a certification stating that the
acquisition is authorized under this section and that all
requirements of this section have been met; and
``(E) directing the applicant to follow--
``(i) the procedures referred to in subsection (b)(2)(A) as
proposed or as modified by the judge;
``(ii) the minimization procedures referred to in
subsection (b)(2)(C) as proposed or as modified by the judge;
and
``(iii) the guidelines referred to in subsection (b)(2)(D)
as proposed or as modified by the judge.
``(2) Failure to comply.--If a person fails to comply with
an order issued under paragraph (1), the Attorney General may
invoke the aid of the court established under section 103(a)
to compel compliance with the order. 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 may be found.
``(3) Liability of order.--Notwithstanding any other law,
no cause of action shall lie in any court against any person
for providing any information, facilities, or assistance in
accordance with an order issued under this subsection.
``(4) Retention of order.--The Director of National
Intelligence and the court established under subsection
103(a) shall retain an order issued under this section for a
period of not less than 10 years from the date on which such
order is issued.
``(5) Assessment of compliance with court order.--At or
before the end of the period of time for which an acquisition
is approved by an order or an extension under this section,
the court established under section 103(a) shall, not less
frequently than once each quarter, assess compliance with the
procedures and guidelines referred to in paragraph (1)(E) and
review the circumstances under which information concerning
United States persons was acquired, retained, or
disseminated.''.
SEC. 4. EMERGENCY AUTHORIZATION OF ACQUISITIONS OF
COMMUNICATIONS OF NON-UNITED STATES PERSONS
LOCATED OUTSIDE THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE THE UNITED
STATES.
Section 105C of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended to read as
follows:
``EMERGENCY AUTHORIZATION OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE THE UNITED STATES WHO MAY BE
COMMUNICATING WITH PERSONS INSIDE THE UNITED STATES
``Sec. 105C. (a) Application After Emergency
Authorization.--As soon as is practicable, but not more than
7 days after the Director of National Intelligence and the
Attorney General authorize an acquisition under this section,
an application for an order authorizing the acquisition in
accordance with section 105B shall be submitted to the judge
referred to in subsection (b)(2) of this section for approval
of the acquisition in accordance with section 105B.
``(b) Emergency Authorization.--Notwithstanding any other
provision of this Act, the Director of National Intelligence
and the Attorney General may jointly authorize the emergency
acquisition of foreign intelligence information (as defined
in paragraph (1) or (2)(A) of section 101(e)) for a period of
not more than 45 days if--
``(1) the Director of National Intelligence and the
Attorney General jointly determine that--
``(A) an emergency situation exists with respect to an
authorization for an acquisition under section 105B before an
order approving the acquisition under such section can with
due diligence be obtained;
``(B) the targets of the acquisition of foreign
intelligence information under this section are persons
reasonably believed to be located outside the United States;
``(C) the targets of the acquisition are reasonably
believed to be persons that are not United States persons;
``(D) there are procedures in place that will be used by
the Director of National Intelligence and the Attorney
General during the duration of the authorization to determine
if there is a reasonable belief that the persons that are the
targets of the acquisition are located outside the United
States and not United States persons;
``(E) the acquisition involves obtaining the foreign
intelligence information from, or with the assistance of, a
communications service provider or custodian, or an officer,
employee, or agent of such service provider or custodian, who
has authorized access to the communications to be acquired,
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;
``(F) a significant purpose of the acquisition is to obtain
foreign intelligence information (as defined in paragraph (1)
or (2)(A) of section 101(e));
``(G) minimization procedures to be used with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h); and
``(H)(i) there are guidelines that will be used to ensure
that an application is filed under secion 104, if otherwise
required by this Act, when a significant purpose of an
acquisition is to acquire the communications of a specific
United States person reasonably believed to be located in the
United States; and
``(ii) the criteria for determining if such a significant
purpose exists require consideration of whether--
``(I) the department or agency of the Federal Government
conducting the acquisition has made an inquiry to another
department or agency of the Federal Government to gather
information on the specific United States person;
``(II) the department or agency of the Federal Government
conducting the acquisition has provided information that
identifies the specific United States person to another
department or agency of the Federal Government;
``(III) the department or agency of the Federal Government
conducting the acquisition determines that the United States
person has been the subject of ongoing interest or repeated
investigation by a department or agency of the Federal
Government; and
``(IV) the specific United States person is a natural
person.
``(2) the Director of National Intelligence and the
Attorney General, or their designees, inform a judge having
jurisdiction to approve an acquisition under section 105B at
the time of the authorization under this section that the
decision has been made to acquire foreign intelligence
information.
``(c) Information, Facilities, and Technical Assistance.--
``(1) Directive.--Pursuant to an authorization of an
acquisition under this section, the Attorney General may
direct a communications service provider, custodian, or an
officer, employee, or agent of such service provider or
custodian, who has the lawful authority to access the
information, facilities, or technical assistance necessary to
accomplish such acquisition to--
``(A) furnish the Attorney General forthwith with such
information, facilities, or technical assistance in a manner
that will protect the secrecy of the acquisition and produce
a minimum of interference with the services that provider,
custodian, officer, employee, or agent is providing the
target of the acquisition; and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished.
``(2) Parameters; certifications.--The Attorney General
shall provide to any person directed to provide assistance
under paragraph (1) with--
``(A) a document setting forth the parameters of the
directive;
``(B) a certification stating that--
``(i) the emergency authorization has been issued pursuant
to this section;
``(ii) all requirements of this section have been met;
``(iii) a judge has been informed of the emergency
authorization in accordance with subsection (b)(2); and
``(iv) an application will be submitted in accordance with
subsection (a); and
``(C) a certification that the recipient of the directive
shall be compensated, at the prevailing rate, for providing
information, facilities, or assistance pursuant to such
directive.''.
SEC. 5. OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-
UNITED STATES PERSONS LOCATED OUTSIDE OF THE
UNITED STATES WHO MAY BE COMMUNICATING WITH
PERSONS INSIDE THE UNITED STATES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105C the following new section:
``OVERSIGHT OF ACQUISITIONS OF COMMUNICATIONS OF NON-UNITED STATES
PERSONS LOCATED OUTSIDE OF THE UNITED STATES WHO MAY BE COMMUNICATING
WITH PERSONS INSIDE THE UNITED STATES
``Sec. 105D. (a) Application; Procedures; Orders.--Not
later than 7 days after an application is submitted under
section 105B(a) or an order is issued under section 105B(e),
the Director of National Intelligence and the Attorney
General shall submit to the appropriate committees of
Congress--
``(1) in the case of an application--
``(A) a copy of the application, including the
certification made under section 105B(b)(1); and
``(B) a description of the primary purpose of the
acquisition for which the application is submitted; and
``(2) in the case of an order, a copy of the order,
including the procedures and guidelines referred to in
section 105B(e)(1)(E).
``(b) Regular Audits.--
``(1) Audit.--Not later than 120 days after the date of the
enactment of this section, and every 120 days thereafter
until the expiration of all orders issued under section 105B,
the Inspector General of the Department of Justice shall
complete an audit on the implementation of and compliance
with the procedures and guidelines referred to in section
105B(e)(1)(E) and shall submit to the appropriate committees
of Congress, the Attorney General, the Director of National
Intelligence, and the court established under section 103(a)
the results of such audit, including, for each order
authorizing the acquisition of foreign intelligence under
section 105B--
``(A) the number of targets of an acquisition under such
order that were later determined to be located in the United
States;
[[Page H14043]]
``(B) the number of persons located in the United States
whose communications have been acquired under such order;
``(C) the number and nature of reports disseminated
containing information on a United States person that was
collected under such order; and
``(D) the number of applications submitted for approval of
electronic surveillance under section 104 for targets whose
communications were acquired under such order.
``(2) Report.--Not later than 30 days after the completion
of an audit under paragraph (1), the Attorney General shall
submit to the appropriate committees of Congress and the
court established under section 103(a) a report containing
the results of such audit.
``(c) Compliance Reports.--Not later than 60 days after the
date of the enactment of this section, and every 120 days
thereafter until the expiration of all orders issued under
section 105B, the Director of National Intelligence and the
Attorney General shall submit to the appropriate committees
of Congress and the court established under section 103(a) a
report concerning acquisitions under section 105B during the
previous 120-day period. Each report submitted under this
section shall include a description of any incidents of non-
compliance with an order issued under section 105B(e),
including incidents of non-compliance by--
``(1) an element of the intelligence community with
procedures referred to in section 105B(e)(1)(E)(i);
``(2) an element of the intelligence community with
procedures referred to in section 105B(e)(1)(E)(ii);
``(3) an element of the intelligence community with
guidelines referred to in section 105B(e)(1)(E)(iii); and
``(4) a person directed to provide information, facilities,
or technical assistance under such order.
``(d) Report on Emergency Authority.--The Director of
National Intelligence and the Attorney General shall annually
submit to the appropriate committees of Congress a report
containing the number of emergency authorizations of
acquisitions under section 105C and a description of any
incidents of non-compliance with an emergency authorization
under such section.
``(e) Appropriate Committees of Congress Defined.--In this
section, the term `appropriate committees of Congress'
means--
``(1) the Permanent Select Committee on Intelligence of the
House of Representatives;
``(2) the Select Committee on Intelligence of the Senate;
and
``(3) the Committees on the Judiciary of the House of
Representatives and the Senate.''.
SEC. 6. DISSEMINATION OF COMMUNICATIONS OF NON-UNITED STATES
PERSONS LOCATED OUTSIDE OF THE UNITED STATES
WHO MAY BE COMMUNICATING WITH PERSONS INSIDE
THE UNITED STATES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by inserting after section
105D (as added by section 5) the following new section:
``DISSEMINATION OF COMMUNICATIONS OF NON-UNITED STATES PERSONS LOCATED
OUTSIDE OF THE UNITED STATES WHO MAY BE COMMUNICATING WITH PERSONS
INSIDE THE UNITED STATES
``Sec. 105E. The contents of communications collected under
section 105B or section 105C, and intelligence reports based
on such contents, shall not be disclosed or disseminated with
information that identifies a United States person unless an
officer or employee of the Federal Government whose rate of
basic pay is not less than the minimum rate payable under
section 5382 of title 5, United States Code (relating to
rates of pay for the Senior Executive Service) determines
that the identity of the United States person is necessary
to--
``(1) understand the foreign intelligence collected under
section 105B or 105C or assess the importance of such
intelligence; and
``(2) protect the national security of the United States,
the citizens, employees, or officers of the United States, or
the members of the United States Armed Forces.''.
SEC. 7. FOREIGN INTELLIGENCE SURVEILLANCE COURT EN BANC.
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) In any case where the court established under
subsection (a) or a judge of such court is required to review
a matter under this Act, the court may, at the discretion of
the court, sit en banc to review such matter and issue any
orders related to such matter.''.
SEC. 8. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) Authority for Additional Judges.--Section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(a)) is amended--
(1) by inserting ``(1)'' after ``(a)'';
(2) in paragraph (1) (as so designated)--
(A) by striking ``11'' and inserting ``15''; and
(B) by inserting ``at least'' before ``seven of the United
States judicial circuits''; and
(3) by designating the second sentence as paragraph (3) and
indenting such paragraph, as so designated two ems from the
left margin.
(b) Consideration of Emergency Applications.--Such section
is further amended by inserting after paragraph (1) (as
designated by subsection (a)(1)) the following new paragraph:
``(2) A judge of the court shall make a determination to
approve, deny, or modify an application submitted pursuant to
section 105(f), section 304(e), or section 403 not later than
24 hours after the receipt of such application by the
court.''.
SEC. 9. REITERATION OF FISA AS THE EXCLUSIVE MEANS BY WHICH
ELECTRONIC SURVEILLANCE MAY BE CONDUCTED FOR
GATHERING FOREIGN INTELLIGENCE INFORMATION.
(a) Exclusive Means.--Notwithstanding any other provision
of law, the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) shall be the exclusive means by which
electronic surveillance may be conducted for the purpose of
gathering foreign intelligence information.
(b) Specific Authorization Required for Exception.--
Subsection (a) shall apply until specific statutory
authorization for electronic surveillance, other than as an
amendment to the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.), is enacted. Such specific
statutory authorization shall be the only exception to
subsection (a).
SEC. 10. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN
WARTIME AND OTHER COLLECTION.
Sections 111, 309, and 404 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are
amended by striking ``Congress'' and inserting ``Congress or
an authorization for the use of military force described in
section 2(c)(2) of the War Powers Resolution (50 U.S.C.
1541(c)(2)) if such authorization contains a specific
authorization for foreign intelligence collection under this
section, or if the Congress is unable to convene because of
an attack upon the United States.''.
SEC. 11. AUDIT OF WARRANTLESS SURVEILLANCE PROGRAMS.
(a) Audit.--Not later than 180 days after the date of the
enactment of this Act, the Inspector General of the
Department of Justice shall complete an audit of all programs
of the Federal Government involving the acquisition of
communications conducted without a court order on or after
September 11, 2001, including the Terrorist Surveillance
Program referred to by the President in a radio address on
December 17, 2005. Such audit shall include acquiring all
documents relevant to such programs, including memoranda
concerning the legal authority of a program, authorizations
of a program, certifications to telecommunications carriers,
and court orders.
(b) Report.--
(1) In general.--Not later than 30 days after the
completion of the audit under subsection (a), the Inspector
General shall submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives and the Select Committee on Intelligence
and the Committee on the Judiciary of the Senate a report
containing the results of such audit, including all documents
acquired pursuant to conducting such audit.
(2) Form.--The report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(c) Expedited Security Clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by the
Inspector General or the appropriate staff of the Office of
the Inspector General of the Department of Justice for a
security clearance necessary for the conduct of the audit
under subsection (a) is conducted as expeditiously as
possible.
SEC. 12. RECORD-KEEPING SYSTEM ON ACQUISITION OF
COMMUNICATIONS OF UNITED STATES PERSONS.
(a) Record-Keeping System.--The Director of National
Intelligence and the Attorney General shall jointly develop
and maintain a record-keeping system that will keep track
of--
(1) the instances where the identity of a United States
person whose communications were acquired was disclosed by an
element of the intelligence community (as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4))
that collected the communications to other departments or
agencies of the United States; and
(2) the departments and agencies of the Federal Government
and persons to whom such identity information was disclosed.
(b) Report.--The Director of National Intelligence and the
Attorney General shall annually submit to the Permanent
Select Committee on Intelligence and the Committee on the
Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary
of the Senate a report on the record-keeping system created
under subsection (a), including the number of inst
