[Congressional Record: January 29, 2008 (House)]
[Page H483]

                         PERMANENT FIX FOR FISA

  (Mr. WILSON of South Carolina asked and was given permission to 
address the House for 1 minute and to revise and extend his remarks.)
  Mr. WILSON of South Carolina. Mr. Speaker, I rise today to call on 
the Democrat majority to pass a permanent fix to our Nation's foreign 
surveillance law and give our intelligence community the tools they 
need to protect American families.
  It has been 6 months since this body passed a temporary patch to the 
Foreign Intelligence Surveillance Act. If Congress fails to pass a 
permanent fix, our Nation's intelligence community will once again be 
limited in their ability to track terrorists and defeat their efforts 
to murder Americans.
  In his State of the Union address last night, President Bush 
reiterated to Members of both parties that the time to act is now. On 
this most important of issues, we owe it to the American people not to 
put American families at risk.
  We can all agree that the safety and well-being of our Nation's 
families is our utmost priority, so let's work together on an agreement 
that will ensure that we meet the challenge of defending our Nation for 
the long term. Our enemies will not hesitate to exploit our 
intelligence loopholes. It is imperative that we not give them that 
  In conclusion, God bless our troops, and we will never forget 
September 11th.


[Congressional Record: January 29, 2008 (House)]
[Page H484]


  (Mr. HOLT asked and was given permission to address the House for 1 
minute and to revise and extend his remarks.)
  Mr. HOLT. Mr. Speaker, the House made a serious mistake last August 
when it passed the Protect America Act. I opposed the legislation at 
the time because it authorized a massive, unregulated electronic 
fishing expedition, an approach guaranteed to ensnare innocent 
Americans and a sloppy, inefficient way to collect intelligence. It 
lacks the basic standard of court review of the government's actions.
  If we have learned anything, it is when officials must establish 
before an independent court that they know what they are doing when 
they collect communications, we get better intelligence than we do 
through indiscriminate collection and fishing expeditions.
  Extending the PAA is unnecessary because existing orders issued under 
it will continue for a year and are broad enough in scope to deal with 
any contingencies that may arise.
  In November we passed in this body a good bill to replace the PAA. 
Congress should never pass legislation under duress brought on by 
propaganda, misinformation, and fear-mongering. I urge my colleagues to 
remember this when we debate the topic today.


[Congressional Record: January 29, 2008 (House)]
[Page H484-H485]


  (Mr. PITTS asked and was given permission to address the House for 1 
minute and to revise and extend his remarks.)
  Mr. PITTS. Mr. Speaker, in August of last year, Congress passed the 
Protect America Act to close a dangerous loophole in our ability to 
collect intelligence information on foreign targets in foreign 

[[Page H485]]

  When this legislation expires on Thursday of this week, our 
intelligence community, responsible to collect intelligence on 
terrorist enemies, will lose their eyes and ears. Congress has stalled 
for 6 months to review the policy and come up with a solution to bring 
FISA up to date with our 21st century technologies and give our 
intelligence community the tools they need to fight terrorism.
  Now the House wants to pass a 30-day extension. The Senate can't even 
agree to that. Democrats in Congress want to empower judges and lawyers 
in their discovery proceedings and frivolous lawsuits over intelligence 
  The laws governing our intelligence collection should not be dealt 
with in the same way one pays rent for an apartment, month to month. We 
need to pass legislation to permanently create a solution that gives 
our intelligence community the tools they need to fight terrorism that 
threatens the security of every American.


[Congressional Record: January 29, 2008 (House)]
[Page H510-H517]


  Mr. CONYERS. Madam Speaker, I move to suspend the rules and pass the 
bill (H.R. 5104) to extend the Protect America Act of 2007 for 30 days, 
as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 5104

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       Section 6(c) of the Protect America Act of 2007 (Public Law 
     110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by 
     striking ``180 days'' and inserting ``195 days''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.

                             General Leave

  Mr. CONYERS. Madam Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Madam Speaker, I yield myself such time as I may 
  Madam Speaker, the temporary Foreign Intelligence Surveillance Act 
law that we enacted in August as a stopgap measure expires on Friday. 
We passed the RESTORE Act in November to provide some FISA reform. The 
Senate is at this moment completing the action. This extension will 
give us time to consider responsible FISA reform in both Houses of the 
Congress while fully preserving current intelligence capabilities while 
we do so. I hope that everyone would agree that this is the most 
responsible approach for protecting our freedom, as well as our 
  I further hope that we would all agree that we need to consider FISA 
reform responsibly, with the care it deserves, and to preserve the 
prerogatives of the House to have our own voice heard.
  This extension is not a vote on the temporary law that we have been 
living under since August of last year, nor is it a vote against the 
temporary bill or against what the Senate is working on. It is a vote 
for avoiding a headlong rush into possibly ill-conceived legislation. 
We should all be able to come together on that, and I am confident that 
we can.
  Madam Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may 
  Madam Speaker, I reluctantly support H.R. 5104, which extends the 
Protect America Act for 2 weeks.
  Last year, the Director of National Intelligence, Admiral McConnell, 
notified Congress about a dangerous loophole in our ability to collect 
intelligence information overseas. Director McConnell estimated that 
the intelligence community was missing two-thirds of all overseas 
terrorist communications. Congress passed the Protect America Act last 
August to close this loophole. Unfortunately, the legislation contained 
an arbitrary 6-month sunset and is currently set to expire this Friday.
  After 6 months of waiting, the Democratic majority is now coming 
perilously close to threatening the safety of every American. But 
rather than pass a long-term fix to the terrorist loophole, the 
Democratic majority wants another extension. The White House promised 
to veto the 30-day extension that the majority was going to bring to 
the floor yesterday. Today's bill represents a compromise for only a 2-
week extension.
  The truth is we do not need any temporary extension. In fact, there 
is a bipartisan bill that we can and should pass today. The Senate 
Intelligence Committee already has approved a bill to close the 
terrorist loophole and provide liability protection to the 
telecommunication companies. That is being blocked by the Democratic 
  As the deadline draws near, the urgent needs of the intelligence 
community must be addressed. This is no time for partisanship. This is 
a time for responsible action.
  Any bill must include two critical provisions. First, Congress has 
the responsibility to enact long-term legislation that allows 
intelligence officials to conduct surveillance on foreign targets 
without a court order. A U.S. Army intelligence officer in Iraq should 
not have to contact a Federal judge in Washington to conduct 
surveillance on Iraqi insurgents.
  Second, Congress must provide liability protection to U.S. 
telecommunication companies that responded to government requests for 
information following the terrorist attacks of September 11. Close to 
40 frivolous lawsuits against the telephone companies already have been 
filed. These companies deserve our thanks, not a flurry of meritless 
  Terrorists have not placed an expiration date on their plots to 
destroy the American way of life. Congress should not put an expiration 
date on our intelligence community's ability to protect our Nation.
  Madam Speaker, I reserve the balance of my time.
  Mr. CONYERS. Madam Speaker, I am pleased to yield 2\1/2\ minutes to 
the gentlewoman from California (Ms. Harman), the chairperson of the 
Subcommittee of Intelligence on Homeland Security and a veteran Member 
of the House on intelligence matters.

                              {time}  1530

  Ms. HARMAN. Madam Speaker, I thank the gentleman for yielding and 
commend him for his leadership. I also commend many on the other side, 
including Mr. Hoekstra, for their devotion to getting intelligence 
  I hope we have bipartisan agreement on the subject before us. But, 
Madam Speaker, I feel compelled to correct the record. Last night in 
his State of the Union address, the President said: ``If Congress does 
not act by Friday, our ability to track terrorist threats would be 
weakened and our citizens could be in greater danger.''
  As a Member who worries 24/7 about terrorist threats against our 
country, I strongly object to that statement. It is inaccurate and yet 
again a bald-faced attempt to play the fear card and to jam Congress 
into gutting a carefully crafted, three-decades old bipartisan law 
called FISA, the Foreign Intelligence Surveillance Act.
  FISA, Madam Speaker, does not expire on Friday. Only the hastily 
cobbled together Protect America Act amendments to FISA expire on 
  This country will not go dark on Friday. Our government has 
aggressively used surveillance tools, and in the past year or so 
secured warrants in compliance with FISA. Those warrants do not expire 
on Friday.
  As for the claim that citizens will be in greater danger, in my view 
actions that fail to follow the laws Congress passes and ignore the 
requirements of the fourth amendment put our democracy in grave danger.
  Madam Speaker, security and liberty are not a zero-sum game.
  In October, the House passed thoughtful legislation, the RESTORE Act, 
to replace the flawed Protect America Act. Once the Senate acts later 
this week and the House has had adequate time to review documents 
concerning activities of telecommunications firms, we should conference 
our bill. Fifteen days is a good estimate of how long it will take to 
send a responsible bill to the President. Let's act responsibly. Vote 

[[Page H511]]

  Mr. SMITH of Texas. Madam Speaker, I yield 4 minutes to the gentleman 
from Michigan (Mr. Hoekstra), who is the ranking member of the Select 
Committee on Intelligence.
  Mr. HOEKSTRA. Madam Speaker, while I will not oppose this bill, even 
though it has not gone through regular order in the committee process, 
I continue to have serious reservations about further putting off the 
critical issue of FISA modernization. I also have significant concern 
with the failure of the majority to ensure a long-term and effective 
solution to the critical problem of ensuring that our intelligence 
community has the tools that it needs to detect and protect potential 
  Last August, Congress acted on an overwhelming bipartisan basis after 
months of prodding to pass the Protect America Act and close 
significant intelligence gaps against foreign terrorists in foreign 
countries. The failure to clarify the authorities of our intelligence 
professionals on a long-term basis had clearly jeopardized America's 
ability to detect and prevent potential terrorist attacks and to 
effectively collect intelligence on foreign adversaries.
  The Protect America Act expires on Friday, February 1. This temporary 
extension will now push that date to February 15. While elements of 
surveillance under the Protect America Act could have temporarily 
continued without an extension, the failure to act permanently on the 
lapsing authorities still ultimately threatens the capabilities of the 
intelligence community to react with speed and agility to new threats 
and changing circumstances.
  We cannot continue to make excuses. We cannot continue to avoid our 
responsibility to deal with this vital issue. National security should 
not be on a week-to-week lease. I think both the President and Members 
on our side of the aisle have made clear that our patience with further 
delays to this vital legislation will be extremely limited.
  Democrats have failed to do their job on this critical national 
security issue, even after Speaker Pelosi boasted last August that they 
would act as soon as possible. Their partisanship on this issue clearly 
has failed. A bipartisan Senate solution, acceptable to the President, 
has been available for weeks, but has been held up by liberal activists 
over the issue of retroactive liability for third parties who may have 
helped the government to detect potential terrorists.
  Madam Speaker, columnist Stuart Taylor recently pointed out that 
holding the private sector hostage to ideological extremism is a 
``risky game.'' It is a risky game for our national security and may 
chill cooperation in future emergencies. He wrote: ``Most Americans 
would want the telecoms to say yes without hesitation. But the telecoms 
would have reason to say no, or delay for a few dangerous days to 
consult their lawyers, if liberals get their way in a battle currently 
raging in Congress.''

               [From the National Journal, Jan, 19, 2008]

                 Holding Telecoms Hostage: A Risky Game

                        (By Stuart Taylor, Jr.)

       Suppose that the next big terrorist attack on our country 
     comes two weeks after a new Democratic president has taken 
     office. Simultaneous suicide bombings devastate 20 schools 
     and shopping malls around the country, killing 1,500 people. 
     The intelligence agencies believe that at least 20 more 
     trained jihadists, including American citizens, are in the 
     United States planning follow-up attacks.
       The president is told that the best hope of stopping a 
     second wave of attacks is to immediately wiretap as many 
     calls and e-mails as possible from and to every private 
     citizen who has been to Pakistan or Afghanistan since 1999. 
     These hundreds of domestic wiretaps, with neither warrants 
     nor probable cause to suspect any individual of terrorist 
     ties might well violate the Foreign Intelligence Surveillance 
       The president nonetheless asks the major telephone 
     companies to place the taps for 30 days while the 
     administration seeks congressional approval. He or she also 
     assures the telecoms in writing that the new attorney general 
     has advised that the Constitution empowers the president to 
     temporarily override FISA during such an emergency--a 
     controversial theory never tested in court.
       Most Americans would want the telecoms to say yes without 
     hesitation. But the telecoms would have reason to say no--or 
     delay for a few dangerous days to consult their lawyers--if 
     liberals and libertarians get their way in a battle currently 
     raging in Congress.
       The issue is whether to immunize these same telecoms 
     retroactively, as President Bush and a bipartisan majority of 
     the Senate Select Committee on Intelligence (including 
     Chairman Jay Rockefeller IV) urge, from liability for having 
     said yes to Bush's warrantless surveillance program during 
     the unprecedented national crisis precipitated by the 9/11 
       The telecoms face more than 40 class actions seeking 
     hundreds of billions of dollars in damages for their roles in 
     the Bush program, which they agreed to after being assured 
     that the attorney general had deemed the program lawful.
       Allowing this litigation to continue would, as a group of 
     highly respected former Justice Department officials wrote in 
     a joint letter to the Senate Judiciary Committee, ``produce 
     perverse incentives that risk damage to our national 
     security,'' because ``both telecommunications carriers and 
     other corporations in the future will think twice before 
     assisting any agency of the intelligence community seeking 
       This particular group includes Jack Goldsmith, James Comey, 
     Patrick Philbin, and John Ashcroft. They (especially the 
     first three) won bipartisan applause for leading a rebellion 
     in 2004 against overreaching claims of power by Bush, who 
     chose to secretly override FISA not just for a few weeks but 
     for years.
       ``Given our experiences,'' the former officials wrote, ``we 
     can certainly understand that reasonable people may question 
     and wish to probe the legal bases for such intelligence 
     activities.'' But the proper forum is the congressional 
     oversight process, they asserted, not ``a public lawsuit 
     against private companies that were asked to assist their 
       Such leading Democrats as former Sen. Bob Kerrey, former 
     Rep. (and 9/11 commission Co-Chair) Lee Hamilton, and former 
     Attorney General Benjamin Civiletti have also called for 
     immunizing the telecoms.
       On the other hand, People for the American Way, like other 
     liberal groups, argues that immunity would ``protect telecoms 
     that knowingly violated law.'' But the telecoms did not 
     violate the law--even if Bush did--according to an October 
     26, 2007, Senate Intelligence Committee report urging 
     adoption of the immunity proposal as part of an important 
     bill updating FISA.
       The committee, after forcing the administration to show 
     investigators the relevant presidential and Justice 
     Department documents, found that the record showed that the 
     telecoms ``acted on a good-faith belief that the president's 
     program, and their assistance, was lawful.'' Courts have for 
     centuries seen such a good-faith belief as grounds for 
     immunizing from lawsuits private parties that heed government 
     officials' requests for help in protecting public safety, 
     especially in emergencies.
       And, in fact, hardly anyone in Congress thinks that the 
     telecoms should (or will) be forced to pay huge damages to 
     the plaintiffs, who after all have suffered no real harm. So 
     why are some senators, including Patrick Leahy, the Senate 
     Judiciary Committee's senior Democrat, fighting the immunity 
       The real reasons are election-year pressure from liberal 
     groups and the hope that the lawsuits will force public 
     disclosure of information embarrassing to the Bush 
     Administration. Leahy said in a press release that he opposed 
     giving retroactive immunity to the telecoms because that 
     would reduce their incentives to protect privacy and ``would 
     eliminate the courts as a check on the illegality of the 
     warrantless wiretapping of Americans that the administration 
     secretly engaged in for almost six years.''
       Leahy may well be right that some aspects of the highly 
     classified wiretapping program were illegal. Indeed, 
     Goldsmith, who took over the Justice Department's Office of 
     Legal Counsel in late 2003 and later touched off the above-
     mentioned rebellion, has publicly called the still-secret OLC 
     surveillance memos that he inherited a ``legal mess.''
       In my own view, Bush's decision to secretly override FISA 
     for a time immediately after 9/11 was probably a lawful 
     exercise of his war powers. But his legal rationale became 
     weaker and weaker when he continued to override the law for 
     months and years without seeking congressional approval.
       It is one thing to say that the president has inherent 
     power to disregard an outdated law during an emergency in 
     which immediate action might save many lives. It is something 
     else to say that the president can secretly continue to 
     disregard that law for several years without ever seeking to 
     amend it. (See my 1/28/06 column.)
       But doubts about the legality of Bush's actions are no 
     justification for holding hostage telecoms that relied on the 
     administration's assurances of legality and were in no 
     position to second-guess its assertions that the surveillance 
     program was essential to national security.
       Not, that is, unless we want to risk that the telecoms, 
     credit card companies, banks, airlines, hospitals, and other 
     private companies--whose cooperation is essential to finding 
     terrorists before they strike--will balk or delay when the 
     next president seeks their help in an emergency.
       And to keep things in perspective, let's remember that even 
     if Bush did violate the law, the terrorist groups targeted by 
     his surveillance program have taken thousands of American 
     lives; that the program itself has apparently caused no 
     serious harm to anyone (except terrorists); and that no 
     evidence exists that Bush or anyone else has ever made

[[Page H512]]

     any improper use of any intercepted communications.
       Opponents of immunity say that the telecoms have nothing to 
     fear in court if they can show that they acted lawfully. And 
     it does seem most unlikely that the telecoms would ultimately 
     lose; the lawsuits face huge obstacles, including the state 
     secrets privilege and doubts about the plaintiffs' standing 
     to sue, as well as the strong evidence that the telecoms 
     acted lawfully.
       But even a remote risk of massive liability for doing the 
     right thing in the past might deter some from doing the right 
     thing in the future. And in the vast, interminable, 
     unpredictable, often perverse meat grinder that high-stakes 
     litigation has become in this country, victory in court would 
     come only after many years of expensive legal battles, 
     uncertainty, downward pressure on stock prices, and publicity 
     damaging to the telecoms' international business interests. 
     This prospect might drive them to accept a nuisance 
     settlement that would yield millions of dollars for the 
     plaintiffs' lawyers and very little for anyone else. Indeed, 
     that's what many plaintiffs' lawyers are hoping for.
       Some senators and others have proposed ways to relieve the 
     telecoms of monetary liability while keeping the litigation 
     alive to force a healthy public airing of information about 
     what Bush and his aides did. One such proposal would have the 
     government cover any damage awards; another would place a 
     very low cap on any damages; a third would ask the FISA court 
     to decide whether the telecoms broke the law. Such expedients 
     would be better than no protection at all. But they would not 
     give the telecoms the finality and the relief from litigation 
     costs that they want and deserve.
       In any event, it seems unlikely that any kind of litigation 
     against the telecoms will yield much new information about 
     what Bush and his aides did. The main reason is that any such 
     evidence is probably inextricably intertwined with 
     operational details of the surveillance, which are highly 
     (and properly) classified. And lawsuits against the 
     government, which would be unaffected by immunizing the 
     telecoms, would be a more logical vehicle for exposing 
     whatever can properly be exposed.
       But the bottom line is that a remote chance of exposing any 
     Bush misconduct is simply not a good enough reason to run 
     even a small risk of losing potentially lifesaving 
     intelligence. And it's simply unfair to hold hostage private 
     companies that thought they were helping to save lives and 
     did nothing wrong.

  Partisan political points and the nonexistent rights of radical 
jihadists shouldn't be more important than giving the most effective 
tools to the intelligence community to detect and prevent attacks. As 
soon as the Senate passes this comprehensive bipartisan bill, the House 
should consider it immediately in order to send a responsible bill to 
the President as quickly as possible.
  There is bipartisan agreement that Congress must act immediately to 
ensure a long-term effective solution that empowers intelligence 
community professionals to act with speed and agility against foreign 
targets, provides retroactive liability protection for third parties 
who may have assisted the government after 9/11, and ensures that court 
orders will continue to be required for any surveillance targeting 
  We should stop the bipartisan obstructionism and move forward with 
permanent legislation to fully ensure the protection of the American 
people and their civil rights.
  Mr. CONYERS. Madam Speaker, I am pleased now to yield 3 minutes to 
the distinguished gentleman from Ohio, Mr. Dennis Kucinich.
  Mr. KUCINICH. Madam Speaker, I rise today in opposition to H.R. 5104, 
a 30-day extension of the Protect America Act.
  When the Protect America Act was passed by this body on August 4, 
2007, I voted against the legislation because it gave legitimacy to the 
administration's surveillance of Americans without warrants. It is in 
the best interest of our Nation to allow this temporary law to expire 
and return to the permanent FISA law until this body can agree on 
legislation that protects our Constitution and upholds the civil 
liberties of U.S. citizens.
  The FISA Court has ruled to prohibit warrantless spying on Americans 
when communications between foreign targets overseas are routed through 
the U.S. The permanent FISA law leaves in place mechanisms to monitor 
potential terrorist activity with the approval of the FISA Court.
  We cannot allow baseless claims of being soft on terror to drive this 
debate. Those who use fear to gain power for themselves are in effect 
subverting our Constitution.
  We are at a moment in the history of this country where it is 
absolutely important that Congress must not accept a false choice. We 
must defend Americans and our Constitution from the politics of fear. 
We must demand that the President cease his attacks on our civil 
  I oppose this legislation, and I will oppose all future attempts by 
this body to pass fear-provoking legislation that sanctions oppression 
against the American people.
  When our Constitution was written and amended, the fourth amendment 
said: ``The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  This fourth amendment has been the bedrock of the freedoms that 
Americans enjoy from a government that would use its power to go deeply 
into people's private affairs.
  We must stand for our Constitution. We must stand for the Bill of 
Rights. That is the purpose of my presence at this very moment before 
this House.
  Mr. CONYERS. Madam Speaker, I yield myself such time as I may 
  Last August, a number of Members with whom I agree lamented the fact 
that we got jammed by the other body and the clock and ended up with a 
bad law. Here I am again today trying to stop that same thing from 
happening again. And yet, in what I can call only in kindness misguided 
perfectionism, there are those here who would come to the floor to 
criticize this bill, a 15-day extension. Now it is easy to do that; it 
is harder to get a good law from both of these bodies at the same time, 
and that's only what this committee is trying to do this afternoon.
  Madam Speaker, I reserve the balance of my time.
  Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman 
from California (Mr. Issa), who is a member of both the Judiciary and 
Intelligence Committees.
  Mr. ISSA. Madam Speaker, 1 minute is just the right amount of time to 
deal with an issue that is as simple as this: we cannot allow our 
enemies abroad to have secrets, and we must maintain the secret of how 
we discover, uncover, reveal, and react to their attempts to hide their 
activities, including the attempt to kill Americans. That's what this 
is all about. That's what we are looking for within the next 15 days. I 
am supportive of this bill because I want to make sure that we cover 
these two points.
  It is not enough to simply attack your enemy when he attacks you. We 
clearly have to know what he intends to do, including when he 
communicates with his operatives in America from overseas; and we very 
clearly need to not let our enemies, through discovery in more than 40 
lawsuits leveled against all of our communications companies, uncover 
what they may or may not have done.
  I want to make sure that we understand: it is not just what 
communications companies may have done. We do not want our enemies to 
know what they may not have done.
  Mr. CONYERS. Madam Speaker, I am pleased to yield to the 
distinguished majority leader of the House of Representatives, Steny 
Hoyer, 1 minute.
  Mr. HOYER. I thank the distinguished chairman for yielding.
  I rise in support of this particular extension. I do not rise and did 
not rise in support of the underlying bill that we are extending. And I 
think the gentleman from Ohio raised some valid points, as the chairman 
thinks he raised valid points as well.
  But the issue here is really one of allowing this body an opportunity 
to pass a bill that speaks to the constitutional issues that have been 
raised, as well as the substantive issues raised by Mr. Issa in what we 
all want to do: protect America and Americans.
  Today the House is voting on a 15-day extension, nothing more, 
nothing less. Before we do that, I want to remind my colleagues that 
this body has already passed legislation to reauthorize FISA.
  On November 15, 2\1/2\ months ago, this body passed the RESTORE Act, 
a bill that modernizes the technologically outdated Foreign 
Intelligence Surveillance Act of 1978, gives the intelligence community 
the authority to intercept critical foreign communications, and

[[Page H513]]

protects our fundamental constitutional rights.
  The bill was skillfully assembled by two of our best chairmen, John 
Conyers and Silvestre Reyes. Those chairmen join me today in support of 
this short-term extension for several reasons. First, despite the 
body's efforts over 2\1/2\ months ago, the Senate has yet to complete 
its work on its own FISA legislation. This week they failed to get 
cloture on either alternative. We are going to await its bill and look 
forward to an undoubtedly challenging, but productive, conference. This 
will take some time.
  Second, on the question of immunity, which the President has so 
highly touted, our committees have been asking for 8 months to see the 
legal documents pertaining to the President's terrorist surveillance 
program. And we have received 8 straight months of denials. The White 
House only offered this access last Friday. It is reasonable to 
conclude that for the committees to carry out its own responsibilities 
and constitutional duties, it needs some time to do that.
  This afternoon, our Judiciary members will be read-in to the program, 
and only next week will they begin to digest the hefty stack of 
documents that, in turn, will help them make a judgment on what, if 
any, immunity is merited. My position has been that in order to give 
immunity, we need to know what we are giving immunity for and what the 
justification for the actions were. Again, we need time for this 
important review. This extension gives us that time.
  Finally, let me say to my colleagues that even if we were unable to 
do this extension, and this is very important, even if we were unable 
to do this extension, February 1 were to come and go without any new 
legislation, no one should fall victim to those fear-mongers who 
suggest that our intelligence community could ``go dark.'' It would 
not. That is simply not the case.
  The authorizations issued under the Protect America Act are in effect 
for up to one full year. So any requests that have been made and 
authorized up to this point in time from August on would be in effect 
at least through next July even if they had been authorized in August. 
The authorization issued under the Protect America Act will help 
protect us to that extent.
  This means that all of the surveillance in effect today will remain 
in effect for least 6 more months. Even the administration's own 
Assistant Attorney General for National Security, Kenneth Wainstein, 
acknowledged this, saying that if the PAA were allowed to expire, 
intelligence officials would still be able to continue eavesdropping on 
already approved targets for another year.

                              {time}  1545

  In fact, out of an abundance of caution, last Thursday, when I 
announced the schedule for this week, I urged the administration, if it 
had any authorizations, it needed to proceed on that for fear that we 
might not extend this act. I think we'll do that today, so that fear 
will not be realized.
  For those new threats that develop after February 1, let us not 
forget that the underlying statute still gives the administration 3 
days' worth of emergency authority to immediately begin surveillance 
without going to the Court, no lesser court. The Court, by the way, now 
has no backlog.
  I encourage my colleagues to support this legislation. It is simply 
much like a CR, which is not a judgment on the merits of a particular 
appropriation bill one way or the other. It is simply a judgment that 
the congressional will ought to be done, that we ought to make our 
judgment based upon a conference report, with the Senate having passed 
a bill, which it has been unable yet to do.
  So I urge my colleagues to support this bill, not because you support 
the underlying bill, but because you share with me and with Mr. Conyers 
and Mr. Kucinich and Mr. Issa and all the others who have dealt with 
this bill a concern about protecting our country and protecting our 
  Mr. SMITH of Texas. Madam Speaker, I yield 3 minutes to the gentleman 
from California (Mr. Lungren), who is a member of the Judiciary 
Committee and the Homeland Security Committee.
  Mr. DANIEL E. LUNGREN of California. Madam Speaker, first of all, let 
me say I rise in support of this bill. Unfortunately, we are at this 
occasion where we have to have this short-term extension.
  But let me just say a couple of things in response to what the 
majority leader said. In the first instance he said that if we don't 
have the Protect America Act, but we have the underlying bill, it will 
work well enough to deal with the problems in an emergency situation. 
Unfortunately, that's contradicted by the head of our intelligence 
services. The reason we are here is because it doesn't work.
  Secondly, the majority leader said the RESTORE Act, the so-called 
RESTORE Act that we passed in November is a bill that we passed that 
should take care of these problems. It is a bill that does not work, 
and I will give you just one example of its difficulty.
  In section 2(a)(2), treatment of inadvertent interceptions, it grants 
greater protections to Osama bin Laden than it would to an American 
citizen heard inadvertently in the United States. That happens to be a 
fact. We've debated it on this floor. Not a single person on that side 
of the aisle has been able to contradict that. And even the chairman of 
the Constitutional Law Subcommittee has come to me and said we are 
right; a huge mistake was made. And yet that was the bill that was 
passed here and that we are told and the American people are being told 
needs to go forward.
  Frankly, the bill we passed in August, the Protect America Act, is 
nothing short of a legislative LASIK surgery. We had the head of the 
intelligence services of the United States come to us and say we were 
blinded so that we could not see over 60 percent of the legitimate 
terrorist targets in the world because of an interpretation of the law 
impacted by the new technology; that is, the way communications are 
transmitted. It was at his request that we looked at this. We did that 
in August. We've opened our eyes. We've been able to look at those 
targets, those legitimate targets around the world. And if we do not 
act today we will close our eyes once again.
  The fact of the matter is, the strangeness of this institution, of 
only allowing the Protect America Act for 6 months, then coming and 
saying, Well, the new bill ought to be limited to 30 days, or 15 days, 
is really something we ought to examine.
  Does anyone suggest that the threat out there is a 6-month threat, a 
15-day threat, a 30-day threat? It is an almost permanent threat that 
we see out there. We need legislation that will give us certainty, that 
will allow us to keep our eyes open, to gather the intelligence 
necessary to protect our homeland.
  You can argue about the Iraq war all you want. This goes to the 
essence of protecting us against the terrorists who would bring the war 
to our shores, who have already brought the war to our shores. This 
goes to the effectiveness of the techniques that are used in today's 
new technology.
  We were asked by Admiral McConnell to do the job. We did the job in 
August, with the exception of not giving the protection to those 
communications companies who actually responded to a patriotic request 
to help in this fight.
  For some reason, my friends on the other side believe in the reverse 
Good Samaritan act: Don't help us; be worried. But bring your attorneys 
when asked.
  Mr. CONYERS. Madam Speaker, it is with great pleasure I recognize a 
distinguished member of the Judiciary Committee, Adam Schiff of 
California, for 2 minutes.
  Mr. SCHIFF. Madam Speaker, last year the President and the Director 
of National Intelligence pushed for legislation that would make it 
easier for the NSA to collect intelligence on Americans and groups 
abroad. Among other things, the administration's legislation would 
allow warrantless eavesdropping of virtually all communications of 
Americans with anyone outside the U.S., so long as the government 
declared that the surveillance was directed at people reasonably 
believed to be located outside the U.S.
  I opposed the bill when it was considered by the House and instead 
joined with Chairman Conyers and Chairman Reyes in support of a 
responsible alternative that would have met the needs of the Director 
of National Intelligence

[[Page H514]]

without compromising the privacy of law-abiding Americans in ways that 
don't improve our security. The proposal included robust oversight and 
audit provisions designed to determine the impact of these changes on 
Americans. Unfortunately, Congress was forced hastily to pass the 
administration's version before adjourning in August. Nonetheless, 
Congress provided the law would sunset in 6 months to ensure that 
modifications were quickly made.
  Over 2 months ago the House returned to this debate by passing the 
RESTORE Act, legislation that updated FISA, provided these effective 
surveillance tools while ensuring robust oversight. Importantly, the 
RESTORE Act also provided protections to ensure that communications of 
U.S. persons were not acquired without some court involvement or 
supervision, provisions that were left out of the proposal passed in 
  The other body has also drafted legislation aimed at modifying the 
bill that passed out of the House in August to provide oversight and 
additional protections. Unfortunately, they haven't completed their 
work. Some very thoughtful proposals like that by Senator Dianne 
Feinstein offer fresh ways to break the impasse over some very 
difficult issues. The proposals that they are debating and attempting 
to finalize have a number of notable departures from the House-passed 
version. With the August bill set to expire in 3 days, it's necessary 
for us to seek a temporary extension in order to ensure this House has 
a role in crafting its revision. The impending deadlines necessitate an 
extension, and I'm proud to support that very modest extension.
  Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman 
from Iowa (Mr. King), who is a distinguished member of the Judiciary 
  Mr. KING of Iowa. Madam Speaker, I rise in support of this 15-day 
extension to the FISA law, but I ask the question, why are we here? And 
the reason we are here is because of a court decision that I think 
appropriately defined the letter of the language in the 1978 FISA law. 
But because the technology changes, that court decision was made. And 
that opened up this can of worms, this Pandora's box of who's concerned 
about whose civil liberties versus how we provide this balance in our 
intelligence. And I would point out that this is a two-front war that 
we're fighting: One is in the Middle East, successfully I will add, and 
the other one is the surveillance that protects us domestically here at 
home and provides for our military to have the tools to work with 
overseas. That is the highest constitutional responsibility that we 
have. We have congressional oversight. We can look into this and see 
what's going on with the FISA law anyway, but the effort to protect our 
retroactive liability of those companies that cooperate with our 
intelligence community is essential. We will lose our ability to do 
surveillance if we lose the ability of the companies to cooperate with 
us. And this is not a trial lawyer's issue; it's a national security 
  Mr. CONYERS. Madam Speaker, we reserve our time at this point.
  Mr. SMITH of Texas. Madam Speaker, may I ask how much time remains on 
each side.
  The SPEAKER pro tempore. The gentleman from Texas has 8 minutes 
remaining. The gentleman from Michigan has 9\1/2\ minutes remaining.
  Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to my colleague 
from Texas (Mr. Gohmert) who is the ranking member of the Crime, 
Terrorism, and Homeland Security Subcommittee of the Judiciary 
  Mr. GOHMERT. Madam Speaker, it seems what we're experiencing here and 
have been for the last 6 months is just the eternal optimism. I love 
that in the Democratic majority. But it's like the fellow that fell off 
the tall building and at each floor was heard to say, ``I'm doing okay 
so far.'' The trouble is, you're going to have the day of reckoning. 
And here we had the 6-month extension back August 4. Now, we've heard 
the majority leader come in and say, Well, it was basically, in so many 
words, it was the White House's fault because they could have given us 
this information about the immunity of the companies, and that's what's 
held this up. But if you go back to August 4 and the vote that did not 
have the immunity in it, there were 41 Democrats that voted for it and 
181 Democrats that voted against it and 9 didn't vote. It was the 
Republicans that passed this. It didn't have anything to do with 
immunity. It had to do with one group wanted to make sure our 
intelligence protected us and had the tools they need, and the other 
was more concerned about the rights of terrorists.
  Now, I would submit to you that this isn't about 6 months. It's not 
about 15 days. We could put it off 30 days, another 6 months, but the 
day of reckoning is coming. And our enemies that want to destroy our 
way of life, they don't think in terms of 15 days, 30 days. They think 
in terms of generations, and they've got to be defeated.
  So I understand and I appreciate my dear friend, Mr. Kucinich, and 
the concerns about civil liberties. I'm concerned about them, too. But 
when it involves, as this act does, a foreign terrorist on foreign 
soil, and I know the concern is, Well, what if they call an American 
citizen? And I'll leave you with this: I would submit to you, if your 
friends are getting calls from foreign terrorists on foreign soil, 
again, tell them to tell the terrorists not to call them at home and 
they'll be okay.
  We need to pass this. We need to give our intelligence the tools they 
  Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman 
from Connecticut (Mr. Shays). He is a former chairman, now ranking 
member of the National Security Subcommittee of the Government 
Oversight and Reform Committee. He is also a senior Republican member 
of the Homeland Security Committee as well.
  Mr. SHAYS. Madam Speaker, the Cold War is over and the world is a 
more dangerous place. Our strategy is no longer containment reaction 
and mutually assured destruction. That went out the window on September 
11. It is detection, prevention, preemption, and, when necessary, even 
unilateral action.
  As the 9/11 Commission points out, we are not combating terrorism as 
if it's some ethereal being. We are confronting Islamists terrorists, 
real people who would do us harm. If you want to deal with the 
consequence of a terrorist attack, write a weak FISA law. But if you 
want to detect and prevent a terrorist act, write a law that works and 
help insure the communication industry works with us.
  The SPEAKER pro tempore. The gentleman from Michigan advises that he 
is ready to close.
  Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman 
from Arizona (Mr. Franks). He is the ranking member of the 
Constitution, Civil Rights, and Civil Liberties Subcommittee of the 
Judiciary Committee.

                              {time}  1600

  Mr. FRANKS of Arizona. Madam Speaker, jihadist terrorism is an 
existential threat to human peace. Our Terrorist Surveillance Program 
is the most powerful tactical weapon we have against terrorists. If we 
knew where every terrorist in the world was tonight, we could end the 
war on terror within weeks. Director of National Intelligence, Mike 
McConnell, has repeatedly asked this body to update this critical tool, 
and he has been met only with stalling from Democrats.
  This tool only allows us to target America's enemies on foreign soil 
with electronic surveillance, and it continues to protect those that 
are on foreign soil including, Madam Speaker, if Osama bin Laden was in 
a hotel on Capitol Hill, we could not target his phone or e-mail with 
electronic surveillance without a FISA warrant.
  This continues to protect Americans. And if we cannot pass this 
critical legislation in the day in which we live, we not only fail our 
primary purpose as a Congress; we fail the American people in future 
  Madam Speaker, we need to pass this.
  Mr. SMITH of Texas. Madam Speaker, I yield myself the balance of the 
  The Senate Intelligence Committee has already approved a bipartisan 
bill to replace the Protect America Act. It contains important 
provisions to help the intelligence committee gather foreign 
surveillance and provides liability protection to telecommunications

[[Page H515]]

companies that assisted the government after the terrorist attacks on 
  The Democratic majority has a duty to end political gamesmanship with 
America's national security and immediately pass legislation that gives 
our intelligence community the tools they need to protect us.
  Madam Speaker, given the rapidly approaching Friday deadline, today I 
ask that my colleagues support a temporary extension; but, of course, 
that's with the understanding that we come back immediately and pass a 
good bill that is long term, that gives liability protection to the 
telephone companies, and that doesn't force us to get a court order to 
listen to Osama bin Laden when he makes a cell phone call from a cave 
in Pakistan to initiate attacks on the United States.
  I hope that any bill that we consider in the coming days will have 
those provisions in them.
  Madam Speaker, I yield back the balance of my time.
  Mr. CONYERS. Madam Speaker, I yield myself the balance of my time.
  I rise, first, to thank the Members of the House for this very 
reasonable debate, and I want to thank particularly my colleagues on 
the other side. Ranking Member Smith has been excellent in helping us 
work out, as closely as we can with reservations, nothing is perfect, 
but I appreciate the spirit with which he has come to the floor today.
  The extension is not a vote for the temporary law that we have been 
living under since August. It is not a vote against the temporary bill 
or against what the Senate is working on. It is a vote only to avoid a 
head-long rush into possibly ill-conceived legislation. And I think we 
have all been able to come together on that.
  I'm grateful to our leadership and to the Members on the other side 
of the aisle for the discussion that brings us here this afternoon.
  Mr. PAUL. Madam Speaker, I rise in opposition to the extension of the 
Protect America Act of 2007 because the underlying legislation violates 
the U.S. Constitution.
  The mis-named Protect America Act allows the U.S. government to 
monitor telephone calls and other electronic communications of American 
citizens without a warrant. This clearly violates the Fourth Amendment, 
which states:
  ``The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
  The Protect America Act sidelines the FISA Court system and places 
authority over foreign surveillance in the director of national 
intelligence and the attorney general with little if any oversight. 
While proponents of this legislation have argued that the monitoring of 
American citizens would still require a court-issued warrant, the bill 
only requires that subjects be ``reasonably believed to be outside the 
United States.'' Further, it does not provide for the Fourth Amendment 
protection of American citizens if they happen to be on the other end 
of the electronic communication where the subject of surveillance is a 
non-citizen overseas.
  We must remember that the original Foreign Intelligence Surveillance 
Act was passed in 1978 as a result of the U.S. Senate investigations 
into the Federal government's illegal spying on American citizens. Its 
purpose was to prevent the abuse of power from occurring in the future 
by establishing guidelines and prescribing oversight to the process. It 
was designed to protect citizens, not the government. The effect seems 
to have been opposite of what was intended. These recent attempts to 
``upgrade'' FISA do not appear to be designed to enhance protection of 
our civil liberties, but to make it easier for the government to spy on 
  The only legitimate ``upgrade'' to the original FISA legislation 
would be to allow surveillance of conversations that begin and end 
outside the United States between non-U.S. citizens where the telephone 
call is routed through the United States. Technology and the global 
communications market have led to more foreign to foreign calls being 
routed through the United States. This adjustment would solve the 
problems outlined by the administration without violating the rights of 
U.S. citizens.
  While I would not oppose technical changes in FISA that the 
intelligence community has indicated are necessary, Congress should not 
use this opportunity to chip away at even more of our constitutional 
protections and civil liberties. I urge my colleagues to oppose this 
and any legislation that violates the Fourth Amendment of the 
  Ms. SCHAKOWSKY. Madam Speaker, I rise today in strong opposition to 
H.R. 5104. I do so because there is no reason to extend the Protect 
America Act. Should the Protect America Act expire, our intelligence 
community will not be left in the ``dark,'' as some suggest. Rather the 
FISA courts will simply return to operating under the original FISA 
law, a law which protected the civil liberties of all Americans while 
also granting the President the tools he needs to conduct an aggressive 
campaign against terror.
  As many of my colleagues have argued today, the original FISA law, 
which passed in 1978 needs to be updated. It was passed to address 
surveillance concerns at a different time in our Nation's history, when 
some of the technological strides we have made since, were simply 
unimaginable. As a member of the Intelligence Committee, I strongly 
support efforts by the Speaker and leaders of both parties to work 
together to update FISA. However, I cannot in good conscience vote in 
favor of a one-month extension of the Protect America Act. I cannot do 
so because the reality is that the Protect America Act does not make 
Americans any safer--rather it allows the Government to pursue an 
enormous and untargeted collection of international communications 
without court order or meaningful oversight by either Congress or the 
courts. Furthermore, it is one of the most damaging pieces of 
legislation against civil liberties I have seen in my eight years in 
the U.S. Congress.
  I feel so strongly that the Protect America Act is an affront to our 
values, that in my opinion it is in the best interest of all Americans 
that this misguided bill be allowed to expire rather than extended for 
even one more day.
  In order to understand why I feel so strongly, let me take a moment 
to outline some of the most abhorrent provisions in the bill we are 
considering extending:
  First, it allows the Attorney General to issue program warrants for 
international calls without court review. This provision removes the 
FISA court, which has overseen the process for 30 years and instead 
places the Attorney General in charge of determining the legitimacy of 
surveillance. Needless to say, this is an enormous responsibility and 
we must all question the wisdom of placing so much authority on the 
shoulders of one Administration official.
  Secondly, it includes no provisions to prevent ``reverse targeting,'' 
the practice whereby surveillance is conducted on a foreign person in 
order to hear their conversations with a person in the United States 
who is the actual target. Under the Protect America Act, these 
conversations can be heard, recorded and stored without a warrant.
  Lastly, the Protect America Act reduces the oversight capabilities of 
Congress by requiring the Attorney General to provide to Congress only 
the information the Justice Department sees fit to report. This 
provision removes an important check upon America's secret surveillance 
  Taken together, the Protect America Act represents a significant 
infringement on each American's civil liberties and allows for a 
potentially dangerous abuse of power by our government. I urge each of 
my colleagues to vote against its extension and allow the original FISA 
law to be reinstated. Doing so will allow the Congress time to work on 
a bipartisan update of the FISA and in the meantime give the 
intelligence community the tools they require while also protecting the 
rights and liberties of all Americans.
  Mr. UDALL of Colorado. Madam Speaker, I will reluctantly support this 
short extension of current law dealing with electronic surveillance 
related to efforts to counter the threat of terrorism.
  My support is reluctant because I did not vote for the current law, 
which I think does not properly balance the need to counteract that 
threat with protection of Americans' rights and liberties. But today I 
will support a brief extension of that law--scheduled to expire in two 
days' time--for several reasons.
  First, I do think the basic law in this area--the Foreign 
Intelligence Surveillance Act, or FISA--needs to be updated to respond 
to changes in technology, which was the purpose of the current, 
temporary law.
  Last August, I voted for a bill (H.R. 3356) to provide such an 
update. Unfortunately, while that bill was supported by a majority of 
the House, it did not receive the two-thirds vote required by the 
procedure under which it was considered, and so was not adopted. Its 
defeat resulted from the opposition of the Bush Administration--
supported by all but 3 of our Republican colleagues--which was 
demanding instead that the House approve a different version. 
Regrettably, that tactic succeeded and the result was passage of the 
current law, which I did not support.
  Then, last November, I again voted for a bill to update FISA, H.R. 
3773, the ``Responsible Electronic Surveillance That is Overseen, 
Reviewed, and Effective'' (or RESTORE) Act.
  That bill is not perfect, but as I said then I did not insist on 
perfection because I thought the House should act to correct the 
shortcomings of the temporary law enacted last

[[Page H516]]

year and because in my opinion the RESTORE Act would give the 
Administration the authority it says it needs to conduct surveillance 
on terrorist targets while restoring many of the protections that the 
temporary law has reduced.
  The House passed the RESTORE Act on November 15th, and we have been 
waiting for the Senate to act. President Bush has criticized the House-
passed bill because it does not grant retroactive immunity from 
lawsuits for telecommunications companies that assisted in the 
Administration's secret surveillance program without being compelled to 
do so by a warrant. As I said in November, I think it might be 
appropriate to consider that, but not until the Bush Administration has 
responded to bipartisan requests for information about the past 
activities of these companies under the program. I have not been ready 
to grant immunity for the companies' past activities while we don't 
know what those activities were.
  Recently, the Administration has finally relented and is allowing 
appropriate review of documents on this subject. But that review is not 
yet complete--and so the second reason I support this legislation is to 
allow the review to continue before Congress is required again to act 
on this subject. This would not be necessary if the Administration had 
not been so resistant to the idea of properly informing Congress and 
providing the relevant information, but now it is needed.
  Finally, because the Senate has been slow to act, I think the current 
law should be extended briefly to provide a reasonable opportunity for 
any differences between the House-passed bill and whatever the Senate 
may approve to be resolved through careful and thorough discussion 
rather than in the kind of exaggerated haste that too often leads to 
unsatisfactory results.
  Therefore, despite what I think are the very real flaws of the 
current, temporary law, I will support this measure to extend it for an 
additional 30 days.
  Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today with great 
concern to H.R. 5104, to extend the Protect American Act of 2007 for 30 
days. I thank the distinguished chairman of the Judiciary Committee and 
I applaud him for his consistent and impeccable commitment to civil 
liberties and civil rights.
  Madam Speaker, this administration has the legal responsibility to 
protect the American people. Let no one come to this floor and suggest 
that what we are doing today is going to save lives, because last year 
we passed legislation that indicated that foreign-to-foreign 
communication had no barriers, no barriers for those who are seeking 
  Yet when an American was involved, the Bill of Rights, the fourth 
amendment, civil liberties with the underpinnings, and therefore a 
court intervened. Extending the Protect America Act for 30 days in the 
hopes that the Senate will produce a version that we are satisfied with 
is not a sufficient reason for violating the civil rights and liberties 
of the American people.
  Homeland security is not a Republican or a Democratic issue. It is an 
issue for all Americans--all of us. Not one of us who sang ``God Bless 
America'' on the steps of this House will allow anyone to undermine the 
security of America.
  The original legislation offered by the House Majority gave the 
Administration everything that they needed. However, the legislation 
that ultimately triumphed, and which this bill today would extend, is a 
disgrace to the United States constitution. By passing this bill today, 
we are compromising the Bill of Rights. We are telling Americans that 
no matter what your business is, you are subject to the unscrupulous, 
undisciplined, irresponsible scrutiny of the Attorney General and 
others without court intervention.
  This is not the day to play politics. It is too important to balance 
civil liberties along with the homeland security and the protection 
needs of America. I feel confident that the House FISA Bill does do 
that. I am disheartened by the other body for their failure to 
recognize that we can secure America by securing the American people 
with fair security laws and by giving them their civil liberties. I 
find the Senate language extremely troublesome, and I am extremely 
disappointed that we could not reach common ground based on the 
original language passed by this House.

  I would ask my colleagues to defeat this so that we can go back to 
the bill that protects the civil liberties of Americans and provides 
homeland security. I ask my colleagues to support the Bill of Rights 
and National Security.
  Had the Bush Administration and the Republican-dominated 109th 
Congress acted more responsibly in the 2 preceding years, we would not 
be in the position of debating legislation that has such a profound 
impact on the national security and on American values and civil 
liberties in the crush of exigent circumstances. More often that not, 
it is true as the saying goes that haste makes waste.
  Madam Speaker, the legislation before us is intended to fill a gap in 
the Nation's intelligence gathering capabilities identified by Director 
of National Intelligence Mike McConnell, by amending the Foreign 
Intelligence Surveillance Act, FISA. But in reality it eviscerates the 
Fourth Amendment to the Constitution and represents an unwarranted 
transfer of power from the courts to the Executive Branch and a Justice 
Department led by an Attorney General whose reputation for candor and 
integrity is, to put it charitably, subject to considerable doubt.
  Madam Speaker, FISA has served the Nation well for nearly 30 years, 
placing electronic surveillance inside the United States for foreign 
intelligence and counter-intelligence purposes on a sound legal footing 
and I am far from persuaded that it needs to be jettisoned or 
substantially amended. But given the claimed exigent circumstances by 
the Administration, let me briefly discuss some of the changes to FISA 
I am prepared to support on a temporary basis, not to exceed 120 days.
  To give a detailed illustration of just how superior the RESTORE Act, 
which the House passed October, is to the ill-considered and hastily 
enacted Protect America Act, I wish to take a few moments to discuss an 
important improvement in the bill that was adopted in the full 
Judiciary Committee markup.
  The Jackson-Lee Amendment added during the markup made a constructive 
contribution to the RESTORE Act by laying down a clear, objective 
criterion for the Administration to follow and the FISA court to 
enforce in preventing reverse targeting.
  ``Reverse targeting,'' a concept well known to members of this 
Committee but not so well understood by those less steeped in the 
arcana of electronic surveillance, is the practice where the government 
targets foreigners without a warrant while its actual purpose is to 
collect information on certain U.S. persons.
  One of the major concerns that libertarians and classical 
conservatives, as well as progressives and civil liberties 
organizations, have with the PAA is that the understandable temptation 
of national security agencies to engage in reverse targeting may be 
difficult to resist in the absence of strong safeguards in the PAA to 
prevent it.

  My amendment reduces even further any such temptation to resort to 
reverse targeting by requiring the Administration to obtain a regular, 
individualized FISA warrant whenever the ``real'' target of the 
surveillance is a person in the United States.
  The amendment achieves this objective by requiring the Administration 
to obtain a regular FISA warrant whenever a ``significant purpose of an 
acquisition is to acquire the communications of a specific person 
reasonably believed to be located in the United States.'' The current 
language in the bill provides that a warrant be obtained only when the 
Government ``seeks to conduct electronic surveillance'' of a person 
reasonably believed to be located in the United States.
  It was far from clear how the operative language ``seeks to'' is to 
be interpreted. In contrast, the language used in my amendment, 
``significant purpose,'' is a term of art that has long been a staple 
of FISA jurisprudence and thus is well known and readily applied by the 
agencies, legal practitioners, and the FISA Court. Thus, the Jackson-
Lee Amendment provides a clearer, more objective, criterion for the 
Administration to follow and the FISA court to enforce to prevent the 
practice of reverse targeting without a warrant, which all of us can 
agree should not be permitted.
  First, I am prepared to accept temporarily obviating the need to 
obtain a court order for foreign-to-foreign communications that pass 
through the United States. But I do insist upon individual warrants, 
based on probable cause, when surveillance is directed at people in the 
United States.
  The Attorney General must still be required to submit procedures for 
international surveillance to the Foreign Intelligence Surveillance 
Court for approval, but the FISA Court should not be allowed to issue a 
``basket warrant'' without making individual determinations about 
foreign surveillance.
  There should be an initial 15-day emergency authority so that 
international surveillance can begin while the warrants are being 
considered by the Court. And there must also be congressional 
oversight, requiring the Department of Justice Inspector General to 
conduct an audit every 60 days of U.S. person communications 
intercepted under these warrants, to be submitted to the Intelligence 
and Judiciary Committees. Finally, as I have stated, this authority 
must be of short duration and must expire by its terms in 120 days.
  In all candor, Madam Speaker, I must restate my firm conviction that 
when it comes to the track record of this President's warrantless 
surveillance programs, there is still nothing on the public record 
about the nature and effectiveness of those programs, or the 
trustworthiness of this Administration, to indicate that they require 
any legislative response, other than to reaffirm the exclusivity of 
FISA and insist that it be followed. This could have

[[Page H517]]

been accomplished in the 109th Congress by passing H.R. 5371, the 
``Lawful Intelligence and Surveillance of Terrorists in an Emergency by 
NSA Act,'' ``LISTEN Act,'' which I have co-sponsored with the then 
Ranking Members of the Judiciary and Intelligence Committees, Mr. 
Conyers and Ms. Harman.

  The Bush administration has not complied with its legal obligation 
under the National Security Act of 1947 to keep the Intelligence 
Committees ``fully and currently informed'' of U.S. intelligence 
activities. Congress cannot continue to rely on incomplete information 
from the Bush administration or revelations in the media. It must 
conduct a full and complete inquiry into electronic surveillance in the 
United States and related domestic activities of the NSA, both those 
that occur within FISA and those that occur outside FISA.
  The inquiry must not be limited to the legal questions. It must 
include the operational details of each program of intelligence 
surveillance within the United States, including: (1) Who the NSA is 
targeting; (2) how it identifies its targets; (3) the information the 
program collects and disseminates; and most important; (4) whether the 
program advances national security interests without unduly 
compromising the privacy rights of the American people.
  Given the unprecedented amount of information Americans now transmit 
electronically and the post-9/11 loosening of regulations governing 
information sharing, the risk of intercepting and disseminating the 
communications of ordinary Americans is vastly increased, requiring 
more precise--not looser--standards, closer oversight, new mechanisms 
for minimization, and limits on retention of inadvertently intercepted 
  Madam Speaker, the legislation before us is not necessary. The bill 
which a majority of the House voted to pass last year is more than 
sufficient to address the intelligence gathering deficiency identified 
by Director McConnell. That bill, H.R. 3356, provided ample amount of 
congressional authorization needed to ensure that our intelligence 
professionals have the tools that they need to protect our Nation, 
while also safeguarding the rights of law-abiding Americans. That is 
why I supported H.R. 3356, but cannot support H.R. 5104.
  I encourage my colleagues to join me in voting against the unwise and 
ill-considered reauthorization of the Protect America Act of 2007.
  Mr. CONYERS. Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and pass the bill, H.R. 5104, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  The title was amended so as to read: ``A Bill to extend the Protect 
America Act of 2007 for 15 days.''.
  A motion to reconsider was laid on the table.