[Congressional Record: March 14, 2008 (House)]
[Page H1707-H1760]
FISA AMENDMENTS ACT OF 2008
Mr. ARCURI. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 1041 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 1041
Resolved, That upon adoption of this resolution it shall be
in order to take from the Speaker's table 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,
with the Senate amendment thereto, and to consider in the
House, without intervention of any point of order except
those arising under clause 10 of rule XXI, a motion offered
by the chairman of the Committee on the Judiciary or his
designee that the House concur in the Senate amendment with
the amendment printed in the report of the Committee on Rules
accompanying this resolution. The Senate amendment and the
motion shall be considered as read. The motion shall be
debatable for one hour, with 40 minutes equally divided and
controlled by the chairman and ranking minority member of the
Committee on the Judiciary and 20 minutes equally divided and
controlled by the chairman and ranking minority member of the
Permanent Select Committee on Intelligence. The previous
question shall be considered as ordered on the motion to its
adoption without intervening motion.
Sec. 2. During consideration of the motion to concur
pursuant to this resolution, notwithstanding the operation of
the previous question, the Chair may postpone further
consideration of the motion to such time as may be designated
by the Speaker.
The SPEAKER pro tempore (Mr. Pastor). The gentleman from New York is
recognized for 1 hour.
Mr. ARCURI. Mr. Speaker, for purposes of debate only, I yield the
customary 30 minutes to the gentleman from Washington (Mr. Hastings).
All time yielded during consideration of the rule is for purpose of
debate only.
General Leave
Mr. ARCURI. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days within which to revise and extend their remarks
and insert extraneous material into the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. ARCURI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, House Resolution 1041 provides for consideration of the
Senate amendment to H.R. 3773, the FISA Amendments Act of 2008. The
rule makes in order a motion offered by the chairman of the Judiciary
Committee to concur in the Senate amendment with the amendment printed
in the Rules Committee report on this resolution.
Mr. Speaker, we have come a long way on the crucial issues of
intelligence-gathering. I commend Chairmen Conyers and Reyes for their
diligence in providing much-needed attention in evaluation of FISA,
while ensuring that we provide our Nation's intelligence community with
the necessary tools and resources to prevent a future terrorist attack
on our Nation.
[[Page H1708]]
Over the last few weeks, my office phone lines have been burning up
with calls from constituents regarding FISA and the need for Congress
to take action. Unfortunately, the calls were prompted by a far-
reaching misinformation campaign aimed to scare the public into
believing that the House majority is in some way prohibiting our
Nation's intelligence community from monitoring the terrorists. Nothing
could be further from the truth. Not only are these claims false, they
are unconscionable.
I don't believe any Member of this institution, Republican or
Democrat, wants to shackle our Nation's intelligence community from
preventing another terrorist attack. Frankly, I am getting alarmed by
the claims by some of my colleagues. For the last couple of weeks, we
have heard only one message from the other side of the aisle: take up
the Senate bill because it has the support of the President. I have no
interest in being a rubber stamp for this administration, nor of any
elected body, even the Senate. That is not why I was sent to Congress.
I certainly mean no disrespect to the Senate, but my constituents sent
me to Congress to use my judgment and conscience to help govern.
The chairman of the Judiciary Committee said it best earlier in the
week during our Rules Committee hearing when he said we are not an
appendage of the Senate. I couldn't agree with Mr. Conyers more. It is
our responsibility to the American people to exercise our legislative
duty. Furthermore, with an issue like FISA and intelligence-gathering,
I am confident that the American people would expect the House to
exercise that duty to the fullest extent possible.
We are a bicameral form of government. The changes we are proposing
to the Senate bill today represent a powerful step forward in the
legislative process. The administration has made it overwhelmingly
clear that they need to use electronic surveillance to track and
identify terrorist targets. And despite the misinformation campaign and
the rhetoric, the proposal we will vote on today makes it easier for
our Nation's intelligence community to wiretap suspected terrorists by
explicitly not requiring a court order to wiretap targets believed to
be outside the United States. In addition, the proposal provides for
surveillance of terrorists and other targets overseas who may be
communicating with Americans.
And we are all well aware of the issue of immunity for telecom
companies. It seems like that is all we have talked about here for the
past several months. As a former prosecutor, I can say from experience
and without hesitation, you never provide immunity to anyone unless you
are sure whom you are giving the immunity to and why you are giving the
immunity out.
One point that has not received enough emphasis over the last few
weeks is that the telecom companies have immunity under current law.
However, the problem is that anytime a telecommunication company goes
to court, this administration steps in and says this is classified
material and the question is deemed state secret, and therefore you are
not allowed to talk about it. In that way, the telecom companies are
not allowed to even defend themselves, but rather have to sit there and
answer for any charges civilly made against them.
I, for one, couldn't agree more that if the intelligence community
goes to a telecom company with adequate authorization and says, We need
communication records for person X because he or she is believed to be
a terrorist, the telecom company deserves to be afforded that
protection. Unfortunately, we have absolutely no idea what the
administration requested and what the telecom companies have provided.
Our proposal provides a commonsense, balanced approach to address the
immunity issue. We want to provide the telecom companies with a legal
way to present their defense in a secure proceeding and in a secure way
in district court without the administration asserting state secret
privileges to block those defenses.
And, again, don't be fooled by the misinformation campaign. We are
not talking about broadcasting the content of those defenses over the
public airwaves, rather just the opposite will be done in camera and in
secret. This would involve ex parte proceedings in camera. That is one-
on-one telecom company and a Federal district court judge behind closed
doors. That way, the determination of whether or not the classified
material is, in fact, a state secret is made by a neutral third party
and not just this administration.
Finally, our proposal establishes a bipartisan national commission
with subpoena power to investigate and report to the American people on
the administration's warrantless surveillance activities and to
recommend procedures and protections for the future in much the same
way that the 9/11 Commission did.
Mr. Speaker, we must bring the misinformation campaign and partisan
wrangling to an end. There is no question that there are groups and
individuals out there who seek to do us harm. There is no question that
my colleagues and I want to give the people who protect us from the
danger every tool they need to keep fighting terrorism. The proposal we
will vote on today will, in fact, provide our Nation's intelligence
community with the resources to prevent future acts of terrorism while
protecting the freedoms of the citizens under the Constitution.
Everyone in this body wants the same thing, and that is to protect
American citizens. This bill does exactly that.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself as much time
as I may consume.
(Mr. HASTINGS of Washington asked and was given permission to revise
and extend his remarks.)
Mr. HASTINGS of Washington. Mr. Speaker, I want to thank my friend
from New York (Mr. Arcuri) for yielding me the customary 30 minutes,
which I must note, Mr. Speaker, is more time than the entire House
Intelligence Committee will be permitted to debate the legislative
proposal covered by this rule. The Democrat Rules Committee is allowing
just 20 minutes for the members of the Select Committee on Intelligence
to debate this Democrat FISA proposal.
What is at stake is the safety and security of our Nation to protect
us against foreign terrorists threats by modernizing the 1970s
electronic surveillance law. The issue before the House is no less than
our intelligence community's ability to protect American citizens by
monitoring foreign terrorists communicating in foreign places. But the
respective members of the Intelligence Committee are to be given only
20 minutes to debate this issue.
It appears that Democrat leaders are not content with their record of
the most closed rules in the history of the U.S. House of
Representatives in shutting down every Member from being permitted to
offer amendments on the House floor. So now they are going so far as to
restrict the time the House is even permitted to debate bills that they
are trying to ram through this body.
Mr. Speaker, since the new Democrat majority took control of the
House Rules Committee last January a year ago, they have approved rules
that allow other committees far more time to debate matters of far less
importance than FISA. For example, H. Res. 214 provided a rule allowing
the Transportation Committee 1 hour of floor debate on legislation to
``authorize appropriations for sewer overflow control grants.''
H. Res. 269 gave the Financial Services Committee 1 hour to debate
housing assistance for Native Hawaiians.
H. Res. 327 gave an hour to the Science and Technology Committee to
discuss scholarships for math and science teachers.
H. Res. 331 gave the Resources Committee 1 hour of time, not just 20
minutes, but 1 hour of time to debate restoring the ``prohibition on
the commercial sale and slaughter of wild free roaming horses and
burros.''
Mr. Speaker, I believe my colleagues on the other side of the aisle
care sincerely about the security of our country and our fellow
citizens. But I fail to understand how it could be justified to allow
more House floor time to debate overflowing sewers and the killing of
wild burros than the members of the Intelligence Committee are allowed
today to discuss the urgent needs of FISA.
The answer is that Democrat leaders are working overtime to block the
[[Page H1709]]
House from voting on a bipartisan compromise bill that has passed the
Senate by a vote of 68-29. The bill passed the Senate over a month ago,
and on February 12, the Democrat leaders refused to allow the House to
even vote on that measure.
Twenty-one Blue Dog Democrats sent a letter to Speaker Pelosi at the
end of January declaring their support for the Senate FISA bill. But
there still hasn't been a vote. Mr. Speaker, I submit for the Record
that letter.
Congress of the United States,
Washington, DC, January 28, 2008.
Dear Madam Speaker: Legislation reforming the Foreign
Intelligence Surveillance Act (FISA) is currently being
considered by the Senate. Following the Senate's passage of a
FISA bill, it will be necessary for the House to quickly
consider FISA legislation to get a bill to the President
before the Protect America Act expires in February.
It is our belief that such legislation should include the
following provisions:
Require individualized warrants for surveillance of U.S.
citizens living or traveling abroad;
Clarify that no court order is required to conduct
surveillance of foreign-to-foreign communications that are
routed through the United States;
Provide enhanced oversight by Congress of surveillance laws
and procedures;
Compel compliance by private sector partners;
Review by FISA Court of minimization procedures;
Targeted immunity for carriers that participated in anti-
terrorism surveillance programs.
The Rockefeller-Bond FISA legislation contains satisfactory
language addressing all these issues and we would fully
support that measure should it reach the House floor without
substantial change. We believe these components will ensure a
strong national security apparatus that can thwart terrorism
across the globe and save American lives here in our country.
It is also critical that we update the FISA laws in a
timely manner. To pass a long-term extension of the Protect
America Act, as some may suggest, would leave in place a
limited, stopgap measure that does not fully address critical
surveillance issues. We have it within our ability to replace
the expiring Protect America Act by passing strong,
bipartisan FISA modernization legislation that can be signed
into law and we should do so--the consequences of not passing
such a measure could place our national security at undue
risk.
Sincerely,
Leonard Boswell, Marion Berry, Mike Ross, Bud Cramer,
Heath Shuler, Allen Boyd, Dan Boren, Jim Matheson,
Lincoln Davis, Tim Holden, Dennis Moore, Christopher
Carney, Earl Pomeroy, Melissa Bean, Joe Baca, John
Tanner, Jim Cooper, Brad Ellsworth, Charlie Melancon,
Zack Space.
When the Rules Committee met to discuss this bill on Wednesday,
several of my Democratic colleagues argued that the House shouldn't
have to give in to a my-way-or-the-highway or take-it-or-leave-it
approach when it comes to the bipartisan Senate bill.
I agree with my colleagues, Mr. Speaker. No Member of this House
should ever vote for legislation that they can't support. Members have
the right to vote their conscience. But, Mr. Speaker, simply allowing
the House to vote on a bipartisan FISA bill doesn't force any Members
to vote against his or her will. It just gives them an opportunity to
vote on a bill that has passed the other body overwhelmingly.
{time} 1030
It is the Democrat leaders and a liberal minority amongst that party
who are telling the rest of the House that it's their way or no way.
For days and weeks, they've refused the call of the 21 Blue Dog
Democrats for the House to act in the name of our Nation's security.
Democrat leaders are standing in the way of letting the House vote and
work its will because they fear a majority of this body will actually
approve the Senate bill.
Mr. Speaker, today, every Member of the House is going to have a
chance to vote and to allow the bipartisan Senate language to pass this
House. Let me be very clear what I intend to do when the previous
question is moved, because this will not be the ordinary motion. I will
amend just one clause of the rule, that is, section 2, so that the
section will then read, and I quote: Upon rejection of the motion to
concur specified in section 1, a motion that the House concur in the
Senate amendments to H.R. 3773 is hereby adopted.
What does that mean? What this means is that by voting ``no'' on the
previous question, the rule will be amended in such a way that
continues to allow the House to debate and vote on the proposal that's
offered by the Democrats today. But if the House Democrat proposal
fails, then the bipartisan Senate FISA bill is then agreed to by the
House. So we will have the vote on the Democrats' partisan FISA bill
presented to us today, but if the vote on the Democrat FISA bill fails,
then the games stop right there and the Senate bill goes to the
President for his signature. There's no more stalling, Mr. Speaker, no
more posturing.
It's time for the House to stand up and vote and get on with the
business of protecting America.
With that, Mr. Speaker, I reserve the balance of my time.
Mr. ARCURI. Mr. Speaker, it just seems to me that this debate is
becoming more and more political rather than focusing on what we're
here to do, and that is to ensure that the people of this country have
absolutely the best FISA bill that they can, a bill that not only
protects us but ensures that the Constitution is protected as well.
That's what this FISA bill does. It takes the best of all the things
that we have been trying to achieve over the past several months and
incorporates it into a bill, including unshackling the telecom
companies so that if they have done what has been asked of them and
what is permitted to do under the law, that they are allowed immunity.
We certainly don't want to prosecute people who have been trying to
help our country and keep our country safe. Nonetheless, this puts into
effect the important factors of ensuring that those things are done.
With that, Mr. Speaker, I would like to yield 2\1/2\ minutes to the
gentleman from Pennsylvania (Mr. Sestak).
Mr. SESTAK. Mr. Speaker, I was assigned to the Pentagon the day 9/11
happened. It was very obvious, sitting there at dead center, that the
world had changed. We in the military used to like away games. We liked
our wars over there. Suddenly we had a home game and things had to
change.
A few days later, I was appointed to be head of the Navy's
antiterrorism unit. Shortly after that, I was on the ground in
Afghanistan flying in with a fellow from the CIA with a suitcase filled
with millions of dollars. I wanted the best insurance, the best
intelligence. But I felt I always had that because I had worked at the
National Security Council, where in counterproliferation and
antiterrorism efforts there, I was able to see that whether it had been
President Reagan, President Clinton, or the first President Bush, FISA
provided that ability.
I like this bill. It is very similar to the Senate bill. If someone
in Saudi Arabia is talking to someone in Germany and it routes to the
United States, we can listen in without asking questions.
I remember being in the White House and being frustrated, because if
somebody was doing proliferation of weapons of mass destruction, we
couldn't, under FISA, get a warrant for them. This bill fixes that.
And then I step back in emergencies. This bill fixes it in an
emergency situation that you don't even have to ask permission; you can
just do it. And it extends from 3 days of having to come to the court
till 7 days. And then even if the court takes another 30 days, keep
listening. Thank you for that.
But the real differences come down to what I think is important,
because every day I was out there for 31 years in the military, I
wasn't just fighting an enemy or trying to deter him; I was fighting
for an ideal, the ideal of which America is founded upon, the rights of
civil rights. Therefore, I honestly believe what we have done in the
telecommunications companies and discussing immunity should be done by
the proper branch of government, the judicial branch, a court, the FISA
Court. Then if everything was not awry, then we can say, under the
provisions of the previous law, they have immunity.
And then I would like to also point out that it is very important to
me that we have oversight on reports that are coming, and they must
come to the FISA Court to explain the procedures they will follow. That
type of oversight is what I followed for. In short, I will never forget
being over there in charge of my carrier battle group, fighting in
Afghanistan, that what I was fighting for was security, number one,
properly balanced with civil rights. This bill
[[Page H1710]]
does do that. I wouldn't vote for it any other way unless it did.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield as
much time as he may consume to the distinguished ranking member of the
Rules Committee, the gentleman from California (Mr. Dreier).
Mr. DREIER. Mr. Speaker, I thank my friend for yielding and I
appreciate his fine work.
It's no secret that there is a lot of controversy surrounding this
issue of modernization of the Foreign Intelligence Surveillance Act and
everything that surrounds our effort to successfully prosecute this war
on terror. We know that sacrifices have been made. We know that
sacrifices continue to be made. And we're all very committed to the
civil liberties of every single American. That's why I'm convinced that
we are not going to take actions which will in any way undermine the
civil liberties of our fellow Americans.
It is very important to note, Mr. Speaker, that as we look at this
issue, there is a great deal of bipartisanship that exists.
Unfortunately, it's not in this body. And I recognize that as the
people's House we have a unique responsibility and we should not in any
way become a rubber stamp for action taken by the other body. But I
will say this. As we look at bipartisanship, it extends beyond our
colleagues in the United States Senate. It does exist right here in the
House, in that 21 Democrats signed a letter to the Speaker and made the
specific request that we have a chance to vote on the proposal that is,
in fact, the bipartisan compromise that did emerge from the Senate. We
also have had a bipartisan group of attorneys general across the
country who have indicated that they very much believe that we should
proceed with taking the action that is embodied in that bipartisan
compromise that has emerged from the Senate.
And, Mr. Speaker, I think one of the most important things that we
should note is not simply bipartisanship but something that clearly
transcends any kind of politics or partisanship, and that is the words
that come from the Director of National Intelligence, Mike McConnell.
And when I say that he transcends partisanship, I would like to remind
our colleagues that this is a man who has spent four decades of his
life working in the intelligence field. He was the head of the National
Security Agency for President Bill Clinton, and he now serves as the
Director of National Intelligence.
In testimony before the Judiciary Committee, he referred to the fact
that there has been a 66 percent reduction, a two-thirds reduction in
the amount of information that they need, that they should be able to
glean in the intelligence area. And he has said that in his discussions
and negotiations with those in the telecommunications industry that
they will not be able to continue as they have in the past to help us
prosecute this war if they don't have this immunity.
Now, Mr. Speaker, I think that one of the things that we in this
debate on the rule are saying is that, let's just allow a vote on that
bipartisan compromise, the so-called Rockefeller-Bond bill that emerged
from the Senate. Sixty-eight Democrats and Republicans came together
and agreed on it. And we had an interesting Rules Committee meeting,
Mr. Speaker, in which we simply said, okay, we're going to have a
chance to vote on the measure that will emerge from the majority, but
why if as my very dear friend, the chairman of the Committee on the
Judiciary, Mr. Conyers said, he said he wanted there to be an exchange
of ideas, if there's going to be an exchange of ideas, let's at least
allow our colleagues to have an up-or-down vote on that bipartisan
compromise which embodies the above-partisan recommendations of the
Director of National Intelligence, the bipartisan recommendations of
the attorneys general across the country and simply say that we should
have a chance to vote on it. It's very unfortunate that this rule
denies Members of the House of Representatives the opportunity to have
that vote.
Mr. Speaker, I urge my colleagues to vote down this rule. We need to
defeat this rule so that we can in fact have a package that will allow
us to do everything we need as we pursue our very, very important
responsibility, and that is to secure our Nation.
Mr. ARCURI. Mr. Speaker, I would like to yield 2 minutes to the
gentleman from New Jersey, a member of the Intelligence Committee, Mr.
Holt.
Mr. HOLT. Mr. Speaker, I thank the gentleman, and I am pleased to
rise to say that not only do we have enough time to debate this, but we
have a very good, well-structured bill in front of us.
It is an important role of the Federal Government to look after the
safety and the security of the American people. This bill does that. It
is a well-structured bill that gives telecom companies the opportunity
they have asked for to defend themselves in court. It provides for a
congressional commission that will look at how electronic surveillance
has been conducted and will make recommendations. It includes a
reasonable expiration date to keep Congress involved in the oversight
of this. And I would argue most importantly this legislation provides
prior involvement of the court in all intercepts of communications of
Americans. Critically important.
Here are the facts. This bill gives our intelligence community the
flexibility they need to collect information on our enemies while
protecting the American people in every aspect. And it mandates
extensive reviews and reporting requirements on the electronic
surveillance programs in question. It rejects the President's efforts
to redefine the relationship between the people and their government, a
very key point.
I commend the Speaker, the leader, the Chair of the Judiciary
Committee, the Chair of the Intelligence Committee for negotiating with
a firm tone and a principled approach to give us very good legislation,
a very good bill despite the fact that they've had to work with the
relentless drumbeat of propaganda and disinformation orchestrated by
the administration in this matter. I commend them for producing such
good legislation in such difficult circumstances.
Mr. HASTINGS of Washington. Mr. Speaker, may I inquire how much time
remains on both sides.
The SPEAKER pro tempore. The gentleman from Washington has 19\1/2\
minutes. The gentleman from New York has 18 minutes.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5
minutes to the gentleman from California (Mr. Royce).
{time} 1045
Mr. ROYCE. I thank the gentleman.
Mr. Speaker, I am rising to oppose the rule. As I think you know, we
are going to end up in a circumstance here, according to our Director
of National Intelligence, where, for the first time, frankly, this
refusal to protect our telecom companies, who face some 40 lawsuits and
billions of dollars, our refusal to allow for the protection for them
to defend themselves will end up stopping the intelligence
professionals from conducting surveillance of foreign persons in
foreign countries. It's really because they cannot read the minds of
their terrorist targets and guarantee that they would not call the
United States or one of their people in the United States.
Unfortunately, sometimes they do. Mahmood Karimi came into this
country in the trunk of a car over the border of Mexico after paying
$5,000. He was the brother, by the way, of the Hezbollah general in
southern Lebanon who launched the attacks there.
I was in Haifa in August, and the Prime Minister of Israel, by the
way, told me that one of his great concerns was the advantages that had
been given up and the knowledge that had now become known to the
terrorists. He said one of the reasons we are having such difficulty
with Hezbollah is because they now know how the United States, how
other countries were able to apprehend the information before these
attacks came.
But in any event, the brother of the individual who was launching
those attacks some years ago actually came into the United States. I am
certain somehow he got phone calls out of Beirut, and I am sorry if we
violated his constitutional rights. I know there is the assumption that
once a foreign agent from a foreign country is in this country, we
don't have the right to monitor and violate his civil rights.
Here is what I do know about this individual: I know that he did
manage to get through our southern border in my State. I know that
somehow we apprehended him up in Detroit. I know that
[[Page H1711]]
once we did, we found 50 of his cohorts who were part of the Hezbollah
cell.
Now, I am not making the allegation that we used this kind of
intelligence in order to apprehend him, because, frankly, I don't know
how we apprehended him. I only give you that example to say these are
the types of individuals who are operating. He was trained by Iran; he
was trained by foreign intelligence. He was here in the United States,
and I imagine in one case out of 1,000, when someone is trying to make
a phone call from Beirut to their agent, let's say in Syria,
occasionally that call might come into the United States because there
might be a foreign agent here.
The point I want to make is that this is, frankly, more protection
than Americans get under court-ordered warrants in Mob and other
criminal cases. The issue we are debating, frankly, is pretty
important. It's an issue of life and death, frankly, as far as I am
concerned.
I serve as the ranking member of the Terrorism and Nonproliferation
Subcommittee. That there have not been attacks on our soil since 9/11
is due to the improved surveillance in real-time that we are able to
conduct against foreign terrorists.
Now, that good record in no way should lead us to discount the
jihadists, because the image of Osama bin Laden's allies operating in
some remote terrain somewhere may give the impression that our foes are
isolated. I want to share with you, because of the Internet our foes
are not isolated. We are confronting a virtual caliphate. Radical
jihadists are physically disbursed, but they are united through the
Internet. They use the tool there to recruit and plot their terrorist
attacks. They use electronic communications for just such a purpose,
and they are very sophisticated in that use.
How has the West attempted to confront that? Well, the British used
Electronic surveillance in real-time and they used it last year to stop
the attack on 10 transatlantic flights. They prevented that attack a
year ago by wiretapping. The French authorities used wiretaps to lure
jihadists basically into custody and prevented a bomb attack.
Given this threat, it is unfathomable that we would weaken our most
effective preventive tool. That's exactly what this bill does, in the
opinion of Admiral McConnell, whose job it is to protect our security.
Admiral McConnell said that we are actually missing a significant
portion of what we should be getting. Now, he has served both
Democratic and Republican administrations with distinction.
I would ask those so distrustful, go ahead, discount his estimate,
cut them in half, say we lose one-third of our intelligence as a result
of this bill passing and the problems that we foment with telecom
companies around the world. I would argue that is too much to give up.
I don't want to lose a single percent of our intelligence on terrorist
communications. With nuclear and biological material floating around
the globe, we don't have that margin of error.
Mr. ARCURI. I thank the gentleman from California. I just want to
assure him that I think I speak for the entire Democratic Caucus when I
say that we share his concern for the safety of this country.
However, when he speaks about things that just blatantly aren't true,
for some reason, and I don't know if it's an attempt to frighten the
American people, it's troubling. This bill, this FISA bill, allows the
government to wiretap any foreign national, whether they are overseas
or they are here. This is just blatantly untrue. What he says about the
fact is that we cannot wiretap, we can't monitor a person that comes to
this country who is a foreigner. It's just blatantly untrue. This FISA
bill allows that to happen.
It's somewhat disheartening when people mention facts that just
aren't true, and I certainly hope it's not for political reasons; but
let's stick to the facts, because the facts are clearly that this bill
allows that to happen.
I yield 2\1/2\ minutes to the gentlewoman from Texas, a member of the
Judiciary Committee, Ms. Jackson-Lee.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, I imagine that Admiral
McConnell is watching and listening, and so allow me this morning to
thank all of the patriots that are stationed around the world that are
the front lines of the national security and defense and intelligence
community of this Nation. To the American people, let me say on your
behalf, we thank them, for they are working every day, and they are
working diligently, and they are being successful.
This rule today supporting the underlying bill should be passed,
because Admiral McConnell is aware that every single tool that he has
asked for, foreign-to-foreign and otherwise in terms of surveillance,
is in this bill.
Interestingly enough, if you will talk to members of the law
enforcement community and those who are dealing with terrorists, they
will tell you that they are intercepting terrorists. They are finding
terrorists every single day. I personally spoke to law enforcement who
noted in one region of the country that they have intercepted three
terrorists. So what we are doing today is providing the codified
document to secure your civil liberties, to suggest that if the focus
of your surveillance is actually an American, they have to have a court
intervention, a quick court intervention.
As it relates to our telecom companies, is anyone suggesting that
they are not patriots? Is anyone suggesting that they will not comply
with a request by the national security community?
They will, because in this bill it indicates to them that if they get
a letter that suggests that we need their help, that they are not
breaking the law, that all of the laws have been in compliance
certified by the AG, they get absolute immunity.
So going forward, there will be no question. If that happened in the
past, they have absolute immunity. There will be no gaping hole, and
the idea of avoiding retroactive immunity is a question to America. It
is protecting your civil liberties. Yes, we have been secure, or we
have avoided a tragedy since 9/11. It is because we have given them the
tools, and now we give them better tools.
It is important to pass this legislation, because it advances the
security of America. But what it says to the world is that we are not
terrorized by the terrorists. We believe in security, but we believe in
the civil liberties of all Americans.
The Constitution still stands.
Mr. Speaker, I rise today in support of the H. Res. 1041, Providing
for Consideration of the Senate Amendment to H.R. 3773, the Foreign
Intelligence Surveillance Act (FISA) Amendments Act. This Rule will
allow us to examine the Senate Amendment and to consider the many
concerns associated with this act.
We have worked as a body to resolve our issues with FISA and with
those of our Senate colleagues without eviscerating the fundamental
rights embodied in the Bill of Rights. Leadership has worked tirelessly
to not simply reconcile the Senate language with the RESTORE Act (H.R.
3773), which we passed in the House on November 15, 2007, but
leadership has also worked tirelessly to go beyond the RESTORE Act.
This current FISA Reform legislation has been borne out of this
tireless struggle. Let me detail some of the ways that the FISA Reform
Act balances security and liberty: adopting provisions from the Senate
bill that will for the first time provide statutory protections for
U.S. persons overseas, that ensures surveillance of their
communications are conducted through the courts; and providing a
mechanism for telecommunications carriers to prove their case that they
did not engage in any wrongdoing and to guarantee due process with a
fair hearing in court.
Like the RESTORE Act, the FISA reform legislation provides for
collection against terrorist organizations such as Al Qaeda, while
providing prior court approval of acquisition and an on-going process
of review and oversight in order to protect Americans' privacy.
The FISA Reform Act creates a bipartisan commission on Warrantless
Electronic Surveillance Activities with strong investigatory powers in
order to preserve the rule of law in pending and future lawsuits. This
revised version of the bill reiterates FISA's exclusive control for
conducting foreign intelligence surveillance, unless a specific
statutory authorization for surveillance is enacted. This is an area
where the House version has differed from the Senate.
Perhaps the most important distinction between the House version of
the bill and the Senate's version is that the Court must approve
surveillance procedures prior to the start of surveillance. Under the
Senate bill, the Director of National Intelligence and the Attorney
[[Page H1712]]
General authorize surveillance and submit procedures to the FISA Court
5 days after surveillance begins. Under the Senate bill, the FISA Court
has no firm deadline for approving the procedures. The Senate bill does
not go far enough in protecting the individual rights of Americans.
The FISA Reform Act requires submission to Congress and the FISA
Court of ``reverse targeting'' guidelines that are to be promulgated by
the NSA. Specifically, these guidelines will determine whether the
``significant purpose'' of the surveillance is to acquire
communications of a specific U.S. person. In this regard, the House
bill gives more teeth to the provisions in the Senate bill, which only
has general prohibitions against reverse targeting and does not require
the promulgation of agency guidelines addressing reverse targeting.
Both the FISA Reform Act and the Senate bill, provide for prospective
liability protection for telecommunications companies that assist with
lawful surveillance activities. However, the FISA Reform Act goes
further by ensuring that telecommunication companies complying with the
Protect America Act (PAA) have liability protection for lawful
surveillance that occurred after the expiration of the PAA.
Another major difference between the bills is that the FISA Reform
Act does not provide for any retroactive immunity. Instead, the FISA
Reform Act provides for a process to allow district courts to review
classified evidence in camera and ex parte (in front of the judge
without the presence of the plaintiff). This allows the
telecommunications companies to have their day in court and to assert
defenses that already exist under FISA and other statutes. This process
simply creates a pathway for companies to assert such defenses.
This process, which allows the Court to review information and the
companies to prove their case, prevents the Executive Branch from
blocking the companies from asserting their defenses under the doctrine
of ``state secrets'' privilege. The FISA Reform Act permits the
telecommunication companies an opportunity to defend themselves but
does not create any new defenses or immunity and it does not excuse any
conduct that may have been unlawful. Under the House bill,
telecommunication companies can prove their innocence in court without
the protection of the States immunity privilege. If these companies
cannot prove that their actions were proper then they will be held
accountable.
The Senate bill grants full immunity to any telecommunication company
where the Attorney General certified that assistance was requested as
part of the President's warrantless surveillance program. This blanket
immunity goes to far, and do not support full immunity.
I believe the FISA Reform Act is better because it provides the
telecommunications companies with due process and an opportunity to
prove their guilt or innocence. I cannot support a case for blanket
immunity and the FISA Reform Act does not allow it.
Lastly, the FISA Reform Act provides a forward looking provision that
establishes a bipartisan National Commission, appointed by Congress.
The Commission will investigate and report to Congress and the public
about the Administration's warrantless surveillance activities.
Homeland security is not a Democratic or a Republican issue, it is
not a House or Senate issue; it is an issue for all Americans--all of
us need to be secure in our homes, secure in our thoughts, and secure
in our communications.
I find it disturbing that our Republican colleagues will not join us
to ensure that Americans are safe here and abroad. Disturbing that they
do not recognize that we must protect the civil liberties of this
Nation just as we protect American lives.
Mr. Speaker, in August of last year, I strongly opposed S. 1927, the
so-called ``Protect America Act'' (PAA), when it came to a vote on the
House floor. Had the Bush administration and the Republican-dominated
109th Congress acted more responsibly in the two preceding years, we
would not have been in the position of debating legislation that had
such a profoundly negative impact on the national security and on
American values and civil liberties in the crush of exigent
circumstances. As that regrettable episode clearly showed, it is true
as the saying goes that haste makes waste.
The PAA was stampeded through the Congress in the midnight hour of
the last day before the long August recess on the dubious claim that it
was necessary to fill a gap in the Nation's intelligence gathering
capabilities identified by Director of National Intelligence Mike
McConnell. In reality, it would have circumvented the Fourth Amendment
to the Constitution and represented an unwarranted transfer of power
from the courts to the Executive Branch and a Justice Department led at
that time by an Attorney General whose reputation for candor and
integrity was, to put it charitably, subject to considerable doubt.
Under the House bill, the Foreign Intelligence Surveillance Court
(FISC) is indispensable and is accorded a meaningful role in ensuring
compliance with the law. The bill ensures that the FISC is empowered to
act as an Article III court should act, which means the court shall
operate neither as a rubber-stamp nor a bottleneck. Rather, the
function of the court is to validate the lawful exercise of executive
power on the one hand, and to act as the guardian of individual rights
and liberties on the other.
Moreover, Mr. Speaker, it is important to point out that the loudest
demands for blanket immunity did not come from the telecommunications
companies but from the administration, which raises the interesting
question of whether the administration's real motivation is to shield
from public disclosure the ways and means by which government officials
may have ``persuaded'' telecommunications companies to assist in its
warrantless surveillance programs.
My amendment, which was added during the markup last year, 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'' is a concept well known to members of the
Judiciary Committee but not so well understood by those less steeped in
the minutiae of electronic surveillance; it 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, as well as progressives
and civil liberties organizations, have with the FISA is that the
temptation of national security agencies to engage in reverse targeting
is often difficult to resist in the absence of strong safeguards to
prevent it.
My amendment, accepted in the House Judiciary mark up, reduced any
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 achieved 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 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 provided 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.
Mr. Speaker, nothing in the Act or the amendments to the Act should
require the Government to obtain a FISA order for every overseas target
on the off chance that they might pick up a call into or from the
United States. Rather, what should be required, is a FISA order only
where there is a particular, known person in the United States at the
other end of the foreign target's calls in whom the Government has a
significant interest such that a significant purpose of the
surveillance has become to acquire that person's communications.
The acquisition of communications will happen over time and the
Government will have the time to get an order while continuing its
surveillance. It is the national security interest to require the
Government to obtain an order at that point, so that it can lawfully
acquire all of the target person's communications rather than
continuing to listen to only some of them.
We are living in a time of economic crisis and acts of unfettered
terrorism. Former President Franklin Delano Roosevelt said that ``our
national determination to keep free of foreign wars and foreign
entanglements cannot prevent us from feeling deep concern when ideals
and principles that we have cherished are challenged.''
Like former President Roosevelt, we must secure our Nation from
foreign entanglements but at the same time we must continue to champion
the fundamental freedoms of all Americans regardless of whether the
surveillance occurs in the United States or abroad.
It is very important to me; and it should be very important to
Members of this body that we require what should be required in all
cases--a warrant any time there is surveillance of a United States
citizen.
In short, the Senate amendment to the House amendment makes a good
bill even better. For this reason alone, civil libertarians should
enthusiastically embrace the amended H.R. 3773.
The Bush administration would like the American people to believe
that Democrats do not want to protect America. My Republican colleagues
echo this false claim in both the chambers of Congress by questioning
our patriotism. But I remind them that tyrannical behavior often
questions the motivations of those seeking to protect civil liberties.
[[Page H1713]]
Let us not fall prey to false proclamations of an administration that
takes our Bill of Rights and lays it to the side when they feel like
it. Security must go hand-in-hand with liberty. Oppression of some for
the alleged security of others is not the example this great Nation
should set.
As I wrote in the Politico, ``the best way to win the war on terror
is to remain true to our democratic traditions. If it retains its
democratic character, no nation and no loose confederation of
international villains will defeat the United States in the pursuit of
its vital interests.''
Thus, the way forward to victory in the war on terror is for the
United States to redouble its commitment to the Bill of Rights and the
democratic values which every American will risk his or her life to
defend. It is only by preserving our attachment to these cherished
values that America will remain forever the home of the free, the land
of the brave, and the country we love.
Mr. 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.
I continue to 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.
In all candor, Mr. 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 not enough on the public record
about the nature and effectiveness of those programs, or the
trustworthiness of this administration, to indicate that they require a
blank check from Congress.
The Bush administration did not comply 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 upon incomplete
information from the Bush administration or upon erroneous revelations
leaked through the media. Instead Congress 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
the United States and abroad.
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
communications.
Mr. Speaker, I encourage my colleagues to Join me In a vote of
support for H. Res. 1041, the Rule providing for FISA Amendments Act. I
yield back the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3
minutes to the distinguished Republican Conference chairman, Mr. Putnam
from Florida.
Mr. PUTNAM. I thank my friend for the time.
Mr. Speaker, much of what we debate down here often is theoretical.
We say if this passes, we believe this will happen. If this fails, we
believe that will happen. Much of it is speculative. It is our opinions
coming down here and directing, gazing into the future about what we
think will happen.
Much in this toxic atmosphere that is Washington that we debate is
very partisan. This issue is neither theoretical nor partisan. It is
not theoretical anymore, because this is now the 27th day that we have
denied our intelligence agencies and law enforcement officials the
tools they need to keep America safe.
It is not partisan because the bill that we are asking you to vote
for and support here in a few minutes already passed the Senate with 68
Senators voting for it. It was voted out on a bipartisan basis.
Now, anyone who follows the activities of the Senate knows that they
have a hard time getting 68 votes for a Mother's Day resolution. For
them to find 68 votes on an issue of this magnitude is remarkable.
The only way that we can put back into place the provisions of the
Protect America Act that allow us to prevent future plots and
conspiracies and attacks on our homeland is to pass the Senate bill. If
we do not pass the Senate bill today, Congress will leave for 2 more
weeks, 2 more weeks that we will deny the eyes and ears to our law
enforcement and intelligence officials who keep us safe.
Now, let me just draw attention to the fact that 21 Blue Dog
Democrats have put their names to a letter saying pass the Senate bill;
68 Senators have voted to pass the Senate bill. The bipartisan Senate
Intelligence Committee said, and I quote, ``Electronic communication
service providers acted in good faith on a good faith belief that the
President's program and their assistance was lawful.''
This is not a theoretical debate. This is an important tool that we
must restore to the hands of our intelligence agencies before Congress
goes home for 2 more weeks. This is an example of the tyranny of the
few blocking the will of the many. It is not just Republicans who say
we need to pass this. It is Senator Rockefeller, chairman of the Senate
Intelligence Committee. It is 21 Blue Dog Democrats.
It is 25 States' attorneys general. This is too important to let it
slip through our fingers before we go home for 2 weeks. Pass the
previous question. Deem the Senate bill passed and give those who stand
on alert as the guardians of our freedom and liberty, liberty and
security on a daily basis, what they need to continue to keep us safe.
Don't extend the 27 days of darkness for another 2 weeks. Give them
the tools they need. Pass the previous question. Pass the Senate bill.
Mr. ARCURI. Mr. Speaker, I yield 4\1/2\ minutes to the gentleman from
New York, a member of the Judiciary Committee, Mr. Nadler.
Mr. NADLER. Mr. Speaker, the last few weeks, the last few minutes we
have heard assertions from our colleagues on the other side of the
aisle that are false and designed to mislead and frighten the American
people. They claim that we allowed the Protect America Act to expire,
that we are dark for 27 days.
Ken Wainstein, the Assistant Attorney General of the United States,
and the Bush administration admitted that because of the provisions of
the group warrants in the Protect America Act that had gone on for a
year, didn't change anything. It is still in effect, number one.
Number two, we forget, this House passed a FISA updating
modernization bill in November, on November 14. We called it the
RESTORE Act. We waited for the Senate to pass a bill so we could go to
conference and compromise on it. When did they pass a bill? Not in
November, not in December, not in January. Because of Republican foot-
dragging, they didn't pass the bill until February, mid-February, three
months after we passed the bill here, and two days before we went home
for a week for the Presidents Day recess.
The President came out and said it's up to the House to pass the
Senate bill, no questions asked. But there are a lot of questions about
the Senate bill. Maybe our bill isn't perfect, but their bill is far
from perfect, and our bill is closer to perfect than theirs.
{time} 1100
So then we said, well, if you don't want, because catastrophe will
happen, according to the President and the Republicans if we go home
without passing the Senate bill, we will extend the Protect America Act
for 3 weeks until we can come back and deal with this. Who voted it
down? The Republicans. They said, no, don't extend it. The President
said he would veto an extension.
So let's not hear any remarks on this floor from that side about how
we are dark because the act expired. It expired because they made it
expire. They voted against a 21-day extension that we could have
renewed if necessary until we got this all figured out. So let's not
hear any less-than-honest assertions about we are dark and we are
unprotected and it is the Democrats' fault.
Mr. Speaker, we have a very good bill here. It gives the intelligence
community every single tool they need and
[[Page H1714]]
every tool they say they need. How does it differ from the Senate bill?
In two ways. One, it provides for some closer judicial supervision,
because while we are giving the intelligence community the tools they
need to wiretap on American citizens, on people who are not American
citizens, we have to make sure that our constitutional rights and
liberties are protected so that this country, which we have all
defended, and we all want to defend, remains worthy of being defended
by defending our own liberties.
Remember why we enacted protections in the first place, because the
administration at the time wiretapped Martin Luther King. We don't want
that to happen again by a future administration. And so we must protect
our civil liberties.
We are told that telecom companies, if we don't provide retroactive
immunity, they won't cooperate in the future, we won't get their help.
Number one, that is an aspersion on their patriotism. Number two, they
can be compelled to do so under court order. And number three, they
have always had immunity. They have it now. All they have to do to have
immunity is to have a request from the administration that says: A, we
need your help; B, you are not violating the law if you do what we ask;
and C, you don't need a court order. If they get that request, whether
those assertions are true or not, as long as the administration says we
need your help, what we are asking you to do won't violate the law, and
you don't need a court order, they are absolutely immune. And they have
always had this immunity.
So why do they need retroactive immunity, they say because the
administration won't permit them to go to court and say we were asked
for help, we gave that help. We have this request and we got the legal
assurances because the administration won't let that go to court
because it says it will violate State secrets.
So what does our bill do? It says you can go to court under secret
procedures to protect the security of the State secrets, but you can
assert your defense in court and get the case thrown out if you at
least got the assurance by the administration in advance, which is all
the law required. If you didn't get that, then you have no respect for
the privacy rights of Americans and you don't deserve immunity. Even if
we gave retroactive immunity for the future to the telecom company that
helped us next week, they still have the same requirements for
immunity. And if they wanted to go to court to assert them if someone
sued them, they would still have to go to court and say the same thing.
So you are dealing with a one-time fix.
Retroactive immunity takes it out of the courts and says Congress
shall say to American citizens you're wrong, you can't protect your
constitutional rights in court, you're right. That is a duty for the
courts, not for Congress. That is the basis of the protections of all
of our rights. The Senate bill goes the wrong way. We protect the
telecom companies and protect our liberties. It is the right way to go.
I urge adoption of this rule.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 1
minute to the gentleman from Ohio (Mr. Boehner), the distinguished
Republican leader.
Mr. BOEHNER. Let me thank my colleague from Washington for yielding.
My colleagues, several years ago when the current Speaker, Speaker
Pelosi, had my job as the minority leader, she said that bills should
generally come to the floor under a fair and open process with
amendments allowed and substitutes allowed.
And yet here we are today once again violating the very words that
she said how the minority should be treated by bringing a bill to the
floor, a Senate bill with amendments crafted by the House with no
opportunity for amendments, no opportunity for substitutes. And no
opportunity to vote straight up or down on the bipartisan bill that
came over from the Senate.
I think that what we have seen here is just a pattern of we are for
this, we create rules that allow the minority the opportunity to be
fairly heard, and yet they are routinely violated.
And so the only way we can have a straight up-or-down vote on the
Senate bill that passed the Senate 68-29, the only way we can have a
vote on that is to defeat the previous question. Why do we want to deny
the Members of the House to vote on the bipartisan Senate bill? I can
probably tell you, that's because it would pass. A majority of the
Members of the House of Representatives are in favor of the Senate
bill. But House leaders are standing in the way of the opportunity for
House Members to actually vote on that bill.
We can get into the merits of the changes that were made to the
Senate bill that are being debated here. I think they handcuff our
intelligence officials. I think that they open up a wide avenue for
trial lawyers to hold communication companies at bay and threaten their
very willingness to help us in this very serious business of tracking
down those who would want to do Americans harm.
And so I would ask my colleagues to defeat the previous question.
Let's have a chance to vote on the bipartisan Senate bill and let's
allow the House to work its will.
Mr. ARCURI. Mr. Speaker, I yield 3 minutes to the gentleman from
Texas, the distinguished chairman of the Intelligence Committee, Mr.
Reyes.
Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
I'm not a lawyer, but I am told by lawyers that every lawyer learns
to argue the following way: When the law is against you, they are
taught to argue the facts. When the facts are against you, they are
taught to argue the law. To a certain extent, that is what is going on
here today.
We just heard from the distinguished minority leader that he wants
the House to go in neutral, put our engine in neutral and just vote on
what the Senate has sent over. In other words, we want to rush to
rubber-stamp what the administration wants. That's not going to happen.
We also heard this morning that somehow my good friend from
Washington State says they haven't had enough time to debate these
issues, the FISA issue. I would remind my good friend that we had
invited our colleagues on the Republican side to work with us, to go
through a process, the process of setting up our ability to go to
conference, and they refused. They refused to participate. So it is not
a failure of getting enough time to participate in the debate; it is a
failure of wanting to participate because the rationale is let's
rubber-stamp what the administration wants, which is the Senate
version.
We also heard that somehow we are losing information. Somehow we are
at a disadvantage because the Protect America Act expired. Nothing
could be further from the truth. I would remind all of the Members that
were here last night that I held up two documents, and one of those
documents authored by the DNI and the Attorney General gave you the
information that refutes that argument.
We have done everything that the DNI has asked us to do in this bill.
He wants us to give the intelligence community the ability to monitor
foreign to foreign. This bill does that.
He wants us to give the telecom companies the opportunity to state
their case in order to get immunity. This bill does that.
The third thing he wanted was to make sure that any time that there
is an American involved or an American address or phone involved, that
a warrant be secured. This bill requires that.
This bill puts the FISA Court back in the process. That's the
American way.
I will close by saying that I come from a State that reveres the
second amendment, our right to bear arms. But I would submit to all of
you, my colleagues here, that that amendment would be irrelevant if we
were to give the administration exactly what they want, and that is the
ability to monitor anyone, any time, for any reason, because a weapon
or a gun is not going to do you any good if the government knows your
every move.
The Senate version is their answer to give the administration exactly
what they want. We took a different approach. Instead of being in
neutral, we are telling the administration and, with all due respect,
we are telling the Senate, let's reconcile our differences. We have
given the DNI every single thing that he wants. And simply stated
today, that dog is not hunting that would create an atmosphere of fear
for America.
[[Page H1715]]
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself 15 seconds
before I yield to the gentleman from Pennsylvania.
The gentleman from Texas just said that he wanted to reconcile the
differences between the House position and the Senate; yet there has
never been a motion or an attempt by the House to go to conference on
these two bills. If you truly want to have a compromise, why don't you
go to conference? That hasn't happened.
Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania
(Mr. Dent).
Mr. DENT. Mr. Speaker, I rise to urge that we defeat the previous
question so we can adopt the Protect America Act.
People in this country think that Washington, D.C., is broken, and
they are absolutely right. It is. And this issue is proof positive of
why Washington, D.C., is broken. Yes, we do have an agreement. It is a
bipartisan agreement, 68 votes in the Senate. There is a majority here,
but the majority leadership won't allow us to consider this very
important and necessary legislation.
Senator Rockefeller, the Democratic chairman of the Intelligence
Committee in the Senate, has said our intelligence capacities are being
degraded because we have failed to pass the Protect America Act.
You know, it is time that we put the national interest ahead of the
special interests. Why are we protecting the most litigious among us in
our society at the expense of our troops serving overseas? We know the
issues. It is retroactive immunity. The telecommunications companies
were attempting to help us in good faith, and no good deed goes
unpunished. That is what it happening here. It is time to get the job
done.
I'm going to refer to an article I read in the Wall Street Journal
back in January, 2006, by Debra Burlingame, the sister of the pilot who
crashed into the Pentagon. The title is, ``Al Qaeda, not the FBI, is
the greater threat to America.'' I think we should heed her advice and
recall, because of that wall that existed before 9/11 between the
intelligence agency and our domestic law enforcement, it prevented us
from being more effective.
Today, we are placing barriers between our government and those who
want to help us in the telecommunications sector, but they are going to
be forced to comply with this. They will not be able to do so
voluntarily. We know what the issue is. The Fraternal Order of Police,
many State attorneys general, the VFW, all agree we should pass the
bipartisan. We have it within our means to do it. I don't understand
why not. It is important for the majority leadership to explain to this
House why they won't let this bipartisan agreement be adopted.
The American people are watching. They want us to get the job done.
They have had enough.
Mr. Speaker, I include the Burlingame article for the Record.
[From the Wall Street Journal, Jan. 30, 2006]
Our Right to Security
al qaeda, not the fbi, is the greater threat to america
(By Debra Burlingame)
One of the most excruciating images of the September 11
attacks is the sight of a man who was trapped in one of the
World Trade Center towers. Stripped of his suit jacket and
tie and hanging on to what appears to be his office curtains,
he is seen trying to lower himself outside a window to the
floor immediately below. Frantically kicking his legs in an
effort to find a purchase, he loses his grip, and falls.
That horrific scene and thousands more were the images that
awakened a sleeping nation on that long, brutal morning.
Instead of overwhelming fear or paralyzing self-doubt, the
attacks were met with defiance, unity and a sense of moral
purpose. Following the heroic example of ordinary citizens
who put their fellow human beings and the public good ahead
of themselves, the country's leaders cast aside politics and
personal ambition and enacted the USA Patriot Act just 45
days later.
A mere four-and-a-half years after victims were forced to
choose between being burned alive and jumping from 90
stories, it is frankly shocking that there is anyone in
Washington who would politicize the Patriot Act. It is an
insult to those who died to tell the American people that the
organization posing the greatest threat to their liberty is
not al Qaeda but the FBI. Hearing any member of Congress
actually crow about ``killing'' or ``playing chicken'' with
this critical legislation is as disturbing today as it would
have been when Ground Zero was still smoldering. Today we
know in far greater detail what not having it cost us.
Critics contend that the Patriot Act was rushed into law in
a moment of panic. The truth is, the policies and guidelines
it corrected had a long, troubled history and everybody who
had to deal with them knew it. The ``wall'' was a tortuous
set of rules promulgated by Justice Department lawyers in
1995 and imagined into law by the Foreign Intelligence
Surveillance Act (FISA) court.
Conceived as an added protection for civil liberties
provisions already built into the statute, it was the wall
and its real-world ramifications that hardened the failure-
to-share culture between agencies, allowing early information
about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to
fall through the cracks. More perversely, even after the
significance of these terrorists and their presence in the
country was known by the FBI's intelligence division, the
wall prevented it from talking to its own criminal division
in order to hunt them down.
Furthermore, it was the impenetrable FISA guidelines and
fear of provoking the FISA court's wrath if they were
transgressed that discouraged risk-averse FBI supervisors
from applying for a FISA search warrant in the Zacarias
Moussaoui case. The search, finally conducted on the
afternoon of 9/11, produced names and phone numbers of people
in the thick of the 9/11 plot, so many fertile clues that
investigators believe that at least one airplane, if not
all four, could have been saved.
In 2002, FISA's appellate level Court of Review examined
the entire statutory scheme for issuing warrants in national
security investigations and declared the ``wall'' a
nonsensical piece of legal overkill, based neither on express
statutory language nor reasonable interpretation of the FISA
statute. The lower court's attempt to micromanage the
execution of national security warrants was deemed an
assertion of authority which neither Congress or the
Constitution granted it. In other words, those lawyers and
judges who created, implemented and so assiduously enforced
the FISA guidelines were wrong and the American people paid
dearly for it.
Despite this history, some members of Congress contend that
this process-heavy court is agile enough to rule on quickly
needed National Security Agency (NSA) electronic surveillance
warrants. This is a dubious claim. Getting a FISA warrant
requires a multistep review involving several lawyers at
different offices within the Department of Justice. It can
take days, weeks, even months if there is a legal dispute
between the principals. ``Emergency'' 72-hour intercepts
require sign-offs by NSA lawyers and pre-approval by the
attorney general before surveillance can be initiated.
Clearly, this is not conducive to what Gen. Michael Hayden,
principal deputy director of national intelligence, calls
``hot pursuit'' of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the
Patriot Act and the NSA terrorist surveillance program. A
minority of senators want to gamble with American lives and
``fix'' national security laws, which they can't show are
broken. They seek to eliminate or weaken anti-terrorism
measures which take into account that the Cold War and its
slow-moving, analog world of landlines and stationary targets
is gone. The threat we face today is a completely new
paradigm of global terrorist networks operating in a high-
velocity digital age using the Web and fiber-optic
technology. After four-and-a-half years without another
terrorist attack, these senators think we're safe enough to
cave in to the same civil liberties lobby that supported that
deadly FISA wall in the first place. What if they, like those
lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like ``Article II
authority,'' ``separation of powers'' and ``right to
privacy,'' are presenting the issues as if politics have
nothing to do with what is driving the subject matter and its
coverage. They want us to forget four years of relentless
``connect-the-dots'' reporting about the missed chances that
``could have prevented 9/11.'' They have discounted the
relevance of references to the two 9/11 hijackers who lived
in San Diego. But not too long ago, the media itself reported
that phone records revealed that five or six of the hijackers
made extensive calls overseas.
NBC News aired an ``exclusive'' story in 2004 that
dramatically recounted how al-Hazmi and al-Mihdhar, the San
Diego terrorists who would later hijack American Airlines
flight 77 and fly it into the Pentagon, received more than a
dozen calls from an al Qaeda ``switchboard'' inside Yemen
where al-Mihdhar's brother-in-law lived. The house received
calls from Osama Bin Laden and relayed them to operatives
around the world. Senior correspondent Lisa Myers told the
shocking story of how, ``The NSA had the actual phone number
in the United States that the switchboard was calling, but
didn't deploy that equipment, fearing it would be accused of
domestic spying.'' Back then, the NBC script didn't describe
it as ``spying on Americans.'' Instead, it was called one of
the ``missed opportunities that could have saved 3,000
lives.''
Another example of opportunistic coverage concerns the
Patriot Act's ``library provision.'' News reports have given
plenty of ink and airtime to the ACLU's unsupported claims
that the government has abused this important records
provision. But how many Americans know that several of the
hijackers repeatedly accessed computers at public
[[Page H1716]]
libraries in New Jersey and Florida, using personal Internet
accounts to carry out the conspiracy? Al-Mihdhar and al-Hazmi
logged on four times at a college library in New Jersey
where they purchased airline tickets for AA 77 and later
confirmed their reservations on Aug. 30. In light of this,
it is ridiculous to suggest that the Justice Department
has the time, resources or interest in ``investigating the
reading habits of law abiding citizens.''
We now have the ability to put remote control cameras on
the surface of Mars. Why should we allow enemies to
annihilate us simply because we lack the clarity or resolve
to strike a reasonable balance between a healthy skepticism
of government power and the need to take proactive measures
to protect ourselves from such threats? The mantra of civil-
liberties hard-liners is to ``question authority''--even when
it is coming to our rescue--then blame that same authority
when, hamstrung by civil liberties laws, it fails to save us.
The old laws that would prevent FBI agents from stopping the
next al-Mihdhar and al-Hazmi were built on the bedrock of a
35-year history of dark, defeating mistrust. More Americans
should not die because the peace-at-any-cost fringe and
antigovernment paranoids still fighting the ghost of Nixon
hate George Bush more than they fear al Qaeda. Ask the
American people what they want. They will say that they want
the commander in chief to use all reasonable means to catch
the people who are trying to rain terror on our cities. Those
who cite the soaring principle of individual liberty do not
appear to appreciate that our enemies are not seeking to
destroy individuals, but whole populations.
Three weeks before 9/11, an FBI agent with the bin Laden
case squad in New York learned that al-Mihdhar and al-Hazmi
were in this country. He pleaded with the national security
gatekeepers in Washington to launch a nationwide manhunt and
was summarily told to stand down. When the FISA Court of
Review tore down the wall in 2002, it included in its ruling
the agent's Aug. 29, 2001, email to FBI headquarters:
``Whatever has happened to this--someday someone will die--
and wall or not--the public will not understand why we were
not more effective and throwing every resource we had at
certain problems. Let's hope the National Security Law Unit
will stand behind their decisions then, especially since the
biggest threat to us now, [bin Laden], is getting the most
`protection.' ''
The public has listened to years of stinging revelations
detailing how the government tied its own--hands in stopping
the devastating attacks of September 11. It is an
irresponsible violation of the public trust for members of
Congress to weaken the Patriot Act or jeopardize the NSA
terrorist surveillance program because of the same illusory
theories that cost us so dearly before, or worse, for rank
partisan advantage. If they do, and our country sustains yet
another catastrophic attack that these antiterrorism tools
could have prevented, the phrase ``connect the dots'' will
resonate again--but this time it will refer to the trail of
innocent American blood which leads directly to the Senate
floor.
Mr. ARCURI. Mr. Speaker, I would again just like to point out that
what this bill does is unshackle the telecommunications companies
because what we do want to do in this particular case is ensure that
they are able to defend themselves if they have cooperated with the
government and followed the law, and that is exactly what this bill
does.
Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman from Kansas
(Mrs. Boyda).
Mrs. BOYDA of Kansas. Mr. Speaker, I just had to come down to the
floor and speak on this. No one, there isn't anybody who disagrees that
we ought to be wiretapping the terrorists. No one disagrees with that.
Democrats, Republicans, everyone wants to keep this country safe.
{time} 1115
Let's make something real clear about what's at stake here. What's at
stake is whether we wiretap Americans. That's what we're talking about.
The bill that we proposed that we have here, it can be summarized in
one thing: wiretap first, get permission later. Go out and be
aggressive. As a matter of fact, you can spy on Americans. You can do
anything. You can spy, you can go out there and keep our country safe.
But when it comes to spying on Americans, that's the difference here.
We believe that you need a warrant to do that, even after the fact of 6
or 7 days later to go back and tell the court what you've done.
I, for one, do not, and am not able to stand here and say, as the
other side says, that the terrorists have already won; we need to give
up our basic constitutional right. I don't believe that the terrorists
have won, and I find it extremely discouraging.
What I find so troubling is the same, same rhetoric that we heard for
this march to Iraq and, quite honestly, lately this march to Iran. Its
the same rhetoric that we're hearing now. It's ``trust me.''
Well, I'll tell you what. I didn't get sent to Washington, DC not to
speak up. A lot of people are worried sick that a 30-second ad is going
to kick them out of office. And I'll tell you what, I will not put my
own re-election ahead of the absolute determination that I have to make
sure, first and foremost, that my family and your family are safe, but
that we do not shred that Constitution to do it. This is not an either/
or, and we need to find a balance. I do not believe the terrorists have
won.
Mr. HASTINGS of Washington. Mr. Speaker, I reserve my time.
Mr. ARCURI. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman
from California (Ms. Zoe Lofgren), a member of the Judiciary Committee.
Ms. ZOE LOFGREN of California. Mr. Speaker, I rise to urge support of
the rule so we can adopt H.R. 3773.
There's been a lot of very misleading and confusing rhetoric about
the issue of immunity. The truth is the phone companies have immunity
already under current law. It's 18 U.S. Code, section 2511. And let me
just read part of it: ``Notwithstanding any other law, providers of
communications services are authorized to provide information in two
cases: if there's a court order, or if they receive a certification in
writing by a person specified in the title or the Attorney General of
the United States that says either no warrant or court order is
required, all the statutory requirements have been met and the
assistance is required.''
The statute says no cause of action shall lie in any court against
any provider of wire or electronic communications if they have received
this certification.
I submit the entire text of section 2511 for the Record.
[From Westlaw, 18 U.S.C.A. Sec. 2511, Effective: Nov. 25, 2002]
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
Chapter 119. Wire and Electronic Communications Interception
and Interception of Oral Communications (Refs & Annos)
Sec. 2511. Interception and disclosure of wire, oral, or
electronic communications prohibited
(1) Except as otherwise specifically provided in this
chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any
other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral
communication when--
(i) such device is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection used
in wire communication; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such
device or any component thereof has been sent through the
mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the
premises of any business or other commercial establishment
the operations of which affect interstate or foreign
commerce; or (B) obtains or is for the purpose of obtaining
information relating to the operations of any business or
other commercial establishment the operations of which affect
interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession
of the United States;
(c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or
electronic communication, knowing or having reason to know
that the information was obtained through the interception of
a wire, oral, or electronic communication in violation of
this subsection;
(d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose,
to any other person the contents of any wire, oral, or
electronic communication, intercepted by means authorized by
sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516,
and 2518 of this chapter, (ii) knowing or having reason to
know that the information was obtained through the
interception of such a communication in connection with a
criminal investigation, (iii) having obtained
[[Page H1717]]
or received the information in connection with a criminal
investigation, and (iv) with intent to or improperly
obstruct, impede, or interfere with a duly authorized
criminal investigation,
shall be punished as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for
an operator of a switchboard, or an officer, employee, or
agent of a provider of wire or electronic communication
service, whose facilities are used in the transmission of a
wire or electronic communication, to intercept, disclose, or
use that communication in the normal course of his employment
while engaged in any activity which is a necessary incident
to the rendition of his service or to the protection of the
rights or property of the provider of that service, except
that a provider of wire communication service to the public
shall not utilize service observing or random monitoring
except for mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or
electronic communication service, their officers, employees,
and agents, landlords, custodians, or other persons, are
authorized to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire,
oral, or electronic communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, if such provider, its
officers, employees, or agents, landlord, custodian, or other
specified person, has been provided with--
(A) a court order directing such assistance signed by the
authorizing judge, or
(B) a certification in writing by a person specified in
section 2518(7) of this title or the Attorney General of the
United States that no warrant or court order is required by
law, that all statutory requirements have been met, and that
the specified assistance is required.
setting forth the period of time during which the provision
of the information, facilities, or technical assistance is
authorized and specifying the information, facilities, or
technical assistance required. No provider of wire or
electronic communication service, officer, employee, or agent
thereof, or landlord, custodian, or other specified person
shall disclose the existence of any interception or
surveillance or the device used to accomplish the
interception or surveillance with respect to which the person
has been furnished a court order or certification under this
chapter, except as may otherwise be required by legal process
and then only after prior notification to the Attorney
General or to the principal prosecuting attorney of a State
or any political subdivision of a State, as may be
appropriate. Any such disclosure, shall render such person
liable for the civil damages provided for in section 2520. No
cause of action shall lie in any court against any provider
of wire or electronic communication service, its officer,
employees, or agents, landlord, custodian, or other specified
person for providing information, facilities, or assistance
in accordance with the terms of a court order, statutory
authorization, or certification under this chapter.
(b) It shall not be unlawful under this chapter for an
officer, employee, or agent of the Federal Communications
Commission, in the normal course of his employment and in
discharge of the monitoring responsibilities exercised by the
Commission in the enforcement of chapter 5 of title 47 of the
United States Code, to intercept a wire or electronic
communication, or oral communication transmitted by radio, or
to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire, oral,
or electronic communication, where such person is a party to
the communication or one of the parties to the communication
has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a wire,
oral, or electronic communication where such person is a
party to the communication or where one of the parties to the
communication has given prior consent to such interception
unless such communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any State.
(e) Notwithstanding any other provision of this title or
section 705 or 706 of the Communications Act of 1934, it
shall not be unlawful for an officer, employee, or agent of
the United States in the normal course of his official duty
to conduct electronic surveillance, as defined in section 101
of the Foreign Intelligence Surveillance Act of 1978, as
authorized by that Act.
(f) Nothing contained in this chapter or chapter 121 or
206 of this title, or section 705 of the Communications Act
of 1934, shall be deemed to affect the acquisition by the
United States Government of foreign intelligence information
from international or foreign communications, or foreign
intelligence activities conducted in accordance with
otherwise applicable Federal law involving a foreign
electronic communications system, utilizing a means other
than electronic surveillance as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, and procedures
in this chapter or chapter 121 and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in section 101 of
such Act, and the interception of domestic wire, oral, and
electronic communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter
121 of this title for any person--
(i) to intercept or access an electronic communication
made through an electronic communication system that is
configured so that such electronic communication is readily
accessible to the general public;
(ii) to intercept any radio communication which is
transmitted--
(I) by any station for the use of the general public, or
that relates to ships, aircraft, vehicles, or persons in
distress;
(II) by any governmental, law enforcement, civil defense,
private land mobile, or public safety communications system,
including police and fire, readily accessible to the general
public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur, citizens band, or
general mobile radio services; or
(IV) by any marine or aeronautical communications system;
(iii) to engage in any conduct which--
(I) is prohibited by section 633 of the Communications Act
of 1934; or
(II) is excepted from the application of section 705(a) of
the Communications Act of 1934 by section 705(b) of that Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference to any
lawfully operating station or consumer electronic equipment,
to the extent necessary to identify the source of such
interference; or
(v) for other users of the same frequency to intercept any
radio communication made through a system that utilizes
frequencies monitored by individuals engaged in the provision
or the use of such system, if such communication is not
scrambled or encrypted.
(h) It shall not be unlawful under this chapter--
(i) to use a pen register or a trap and trace device (as
those terms are defined for the purposes of chapter 206
(relating to pen registers and trap and trace devices) of
this title); or
(ii) for a provider of electronic communication service to
record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of
the wire or electronic communication, or a user of that
service, from fraudulent, unlawful or abusive use of such
service.
(i) It shall not be unlawful under this chapter for a
person acting under color of law to intercept the wire or
electronic communications of a computer trespasser
transmitted to, through, or from the protected computer, if--
(I) the owner or operator of the protected computer
authorizes the interception of the computer trespasser's
communications on the protected computer;
(II) the person acting under color of law is lawfully
engaged in an investigation;
(III) the person acting under color of law has reasonable
grounds to believe that the contents of the computer
trespasser's communications will be relevant to the
investigation; and
(IV) such interception does not acquire communications
other than those transmitted to or from the computer
trespasser.
(3)(a) Except as provided in paragraph (b) of this
subsection, a person or entity providing an electronic
communication service to the public shall not intentionally
divulge the contents of any communication (other than one to
such person or entity, or an agent thereof) while in
transmission on that service to any person or entity other
than an addressee or intended recipient of such communication
or an agent of such addressee or intended recipient.
(b) A person or entity providing electronic communication
service to the public may divulge the contents of any such
communication--
(i) as otherwise authorized in section 2511(2)(a) or 2517
of this title;
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to its
destination; or
(iv) which were inadvertently obtained by the service
provider and which appear to pertain to the commission of a
crime, if such divulgence is made to a law enforcement
agency.
(4)( a) Except as provided in paragraph (b) of this
subsection or in subsection (5), whoever violates subsection
(1) of this section shall be fined under this title or
imprisoned not more than five years, or both.
(b) Conduct otherwise an offense under this subsection that
consists of or relates to the interception of a satellite
transmission that is not encrypted or scrambled and that is
transmitted--
(i) to a broadcasting station for purposes of
retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to
facilities open to the public, but not including data
transmissions or telephone calls,
is not an offense under this subsection unless the conduct is
for the purposes of direct or indirect commercial advantage
or private financial gain.
[(c) Redesignated (b)]
(5)(a)(i) If the communication is--
(A) a private satellite video communication that is not
scrambled or encrypted and
[[Page H1718]]
the conduct in violation of this chapter is the private
viewing of that communication and is not for a tortious or
illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain; or
(B) a radio communication that is transmitted on
frequencies allocated under subpart D of part 74 of the rules
of the Federal Communications Commission that is not
scrambled or encrypted and the conduct in violation of this
chapter is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage or
private commercial gain,
then the person who engages in such conduct shall be subject
to suit by the Federal Government in a court of competent
jurisdiction.
(ii) In an action under this subsection--
(A) if the violation of this chapter is a first offense for
the person under paragraph (a) of subsection (4) and such
person has not been found liable in a civil action under
section 2520 of this title, the Federal Government shall be
entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or
subsequent offense under paragraph (a) of subsection (4) or
such person has been found liable in any prior civil action
under section 2520, the person shall be subject to a
mandatory $500 civil fine.
(b) The court may use any means within its authority to
enforce an injunction issued under paragraph (ii)(A), and
shall impose a civil fine of not less than $500 for each
violation of such an injunction.
credit(s)
(Added Pub. L. 90-351, Title III, Sec. 802, June 19, 1968,
82 Stat. 213, and amended Pub. L. 91-358, Title II,
Sec. 211(a), July 29, 1970, 84 Stat. 654; Pub. L. 95-511,
Title II, Sec. 201(a) to (c), Oct. 25, 1978, 92 Stat. 1796,
1797; Pub. L. 98-549, Sec. 6(b)(2), Oct. 30, 1984, 98 Stat.
2804; Pub. L. 99-508, Title I, Sec. 101(b), (c)(l), (5), (6),
(d), (t), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853; Pub. L.
103-322, Title XXXII, Sec. 320901, Title XXXIII,
Sec. 330016(1)(f)(G), Sept. 13, 1994, 108 Stat. 2123, 2147;
Pub. L. 103-414, Title II, Sec. 202(b), 204, 205, Oct. 25,
1994, 108 Stat. 4290, 4291; Pub. L. 104-294, Title VI,
Sec. 604(b)(42), Oct. 11, 1996, 110 Stat. 3509; Pub. L. 107-
56, Title II, Sec. Sec. 204, 217(2), Oct. 26, 2001, 115 Stat.
281, 291; Pub. L. 107-296, Title II, Sec. 225(h)(2), Nov. 25,
2002, 116 Stat. 2158.)
Current through P.L. 110-195 (excluding P.L. 110-181)
approved 3-12-08
Simply put, the phone companies have immunity. The only issue is, do
they get their day in court to tell a judge that they have immunity?
This bill allows for that.
I think the phone companies, like any other party, have a right to
assert their defenses and be heard by a judge and have their case be
heard. This bill provides for that.
Now, why wouldn't the Bush administration be supportive?
I think the administration is more concerned about their liability
than the phone companies.
Mr. HASTINGS of Washington. Mr. Speaker, I continue to reserve my
time.
Mr. ARCURI. Mr. Speaker, I am prepared to close. We have no further
speakers on our side.
Mr. HASTINGS of Washington. Mr. Speaker, how much time do I have?
The SPEAKER pro tempore. The gentleman from Washington has 8\1/4\
minutes.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance
of the time.
Mr. Speaker, earlier in this debate I put into the Record the January
28 letter from the 21 Blue Dog Democrats to Speaker Pelosi in support
of the bipartisan Senate bill. And I'd like to quote from that letter,
Mr. Speaker:
``Following the Senate's passage of a FISA bill, it will be necessary
for the House to quickly consider FISA legislation to get a bill to the
President before the Protect America Act expires in February.''
Mr. Speaker, the Protect America Act has expired, as has the entire
month of February. But House Democrat leaders have not acted, as these
21 Blue Dog Democrats have asked, on our national security needs.
I will quote again from the Blue Dog Democrat letter: ``We have it
within our ability to replace the expiring Protect America Act by
passing strong bipartisan FISA modernization legislation that can be
signed into law, and we should do so. The consequences of not passing
such a measure would place our national security at undue risk.''
I regret to say, Mr. Speaker, that for 27 days, our country's
national security has been put at undue risk because FISA legislation
has not been passed because the Democrat leaders are blocking the House
from voting, from even voting on the Senate proposal that passed the
Senate by a 68-29 vote.
So let me be very clear about what I'm talking about when I'm going
to ask my colleagues to vote ``no'' on the previous question, and why
that will be an attempt, or will be a means, by which we can address
the Senate bill for the first time in this body, because this, what I'm
going to do, is not an ordinary motion.
By voting ``no,'' Mr. Speaker, on the previous question, I will seek
to amend one specific clause of the rule, H. Res. 1041, so that the
House will still be permitted to debate the FISA bill that this
underlying rule makes in order; but if that bill, and if that proposal
does not pass this body, then the House, under the provision that I'm
seeking to amend the rule, will agree to the Senate bill; and,
therefore, the bill would be sent to the President to become law.
Mr. Speaker, I ask unanimous consent to have the text of the
amendment and extraneous material inserted into 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. Now let me just review where we are on
this, just to put this into a time frame. The Protect America Act was
first put into place last August, set to expire in February so they
could work out the differences.
Now, the Senate had their proposal, as I mentioned, and as has been
mentioned by our leader, passed by a big margin, 68-29.
The House has their version. There's nothing unusual with both Houses
in a bicameral legislative body having two versions of the same issue.
And the way you generally resolve that is to go to conference and work
out the difference.
We have not had the opportunity, in this body, to go to conference
with the Senate on this bill. Further, we have been denied time and
time again to have an opportunity to even vote on the Senate
amendments. By defeating the previous question, we will have that
opportunity.
So I urge my colleagues to vote to defeat the previous question so we
can amend the rule to have an opportunity to vote and address the
Senate bill that passed overwhelmingly.
Mr. Speaker, I yield back the balance of my time.
Mr. ARCURI. Mr. Speaker, as I said earlier, we must bring the
misinformation campaign and partisan wrangling to an end.
There is no question that there are groups and individuals out there
who would seek to do America harm. There is no question that my
colleagues and I want to give the people who protect us from the danger
every tool they need to fight terrorism.
The proposal we will vote on today will, in fact, provide our
Nation's Intelligence Community with the resources to prevent future
acts of terrorism, while protecting the freedoms of our citizens under
the Constitution.
I strongly 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. 1041 Offered by Mr. Hastings of Washington
Strike section 2 and insert in lieu thereof the following:
``Sec. 2. Upon rejection of the motion to concur specified
in section 1, a motion that the House concur in the Senate
amendmemt to H.R. 3773 is hereby adopted.''.
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
l09th 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
[[Page H1719]]
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution . . . . . [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress, (page
56). Here's how the Rules Committee described the rule using
information from Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. ARCURI. Mr. Speaker, I yield back the balance of my time, and I
move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. HASTINGS of Washington. Mr. Speaker, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 217,
nays 190, not voting 23, as follows:
[Roll No. 143]
YEAS--217
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Fattah
Filner
Foster
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hirono
Hodes
Holden
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Richardson
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Wu
Wynn
Yarmuth
NAYS--190
Aderholt
Akin
Alexander
Bachmann
Bachus
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Brady (TX)
Broun (GA)
Brown (SC)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carney
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Cooper
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Donnelly
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
Engel
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Myrick
Neugebauer
Pearce
Pence
Petri
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (SC)
Wittman (VA)
Wolf
Young (FL)
NOT VOTING--23
Boustany
Brown-Waite, Ginny
Cramer
Cubin
Gilchrest
Granger
Hinojosa
Hooley
Hunter
LaHood
McMorris Rodgers
Meeks (NY)
Musgrave
Nunes
Oberstar
Peterson (PA)
Pickering
Rangel
Rush
Tancredo
Weller
Woolsey
Young (AK)
{time} 1148
Mr. MANZULLO changed his vote from ``yea'' to ``nay.''
Mr. BAIRD changed his vote from ``nay'' to ``yea.''
Mr. CARSON of Indiana changed his vote from ``present'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the 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 vote was taken by electronic device, and there were--yeas 221,
nays 188, not voting 21, as follows:
[Roll No. 144]
YEAS--221
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Fattah
Filner
[[Page H1720]]
Foster
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hirono
Hodes
Holden
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Richardson
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Wu
Wynn
Yarmuth
NAYS--188
Aderholt
Akin
Alexander
Bachmann
Bachus
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Brady (TX)
Broun (GA)
Brown (SC)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Cooper
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
Engel
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Myrick
Neugebauer
Paul
Pearce
Pence
Petri
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (SC)
Wittman (VA)
Wolf
Young (FL)
NOT VOTING--21
Boustany
Brown-Waite, Ginny
Cramer
Cubin
Gilchrest
Hinojosa
Hooley
Hunter
LaHood
Meeks (NY)
Musgrave
Nunes
Oberstar
Peterson (PA)
Pickering
Rangel
Rush
Tancredo
Weller
Woolsey
Young (AK)
{time} 1205
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Personal explanation
Mr. HINOJOSA. Mr. Speaker, on rollcall Nos. 143 and 144, I was
unavoidably detained. Had I been present, I would have voted ``yea'' on
rollcall Nos. 143 and 144.
Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 1041, I call
up 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, with a
Senate amendment thereto, and ask for its immediate consideration in
the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Ross). The Clerk will designate the
Senate amendment.
The text of the Senate amendment is as follows:
Senate amendment:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication
service providers.
Sec. 203. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.
TITLE III--OTHER PROVISIONS
Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC
SURVEILLANCE.
``Nothing in the definition of electronic surveillance
under section 101(f) shall be construed to encompass
surveillance that is targeted in accordance with this title
at a person reasonably believed to be located outside the
United States.
``SEC. 702. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' shall have the meanings given such
terms in section 101, except as specifically provided in this
title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(3) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to
