Congressman Schiff Offers NSA Amendment to the FY07 Department of Defense Appropriations Act6/20/06
Mr. SCHIFF. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Schiff:
At the end of the bill (before the Short Title), insert the following:
TITLE X--ADDITIONAL GENERAL PROVISIONS
SEC. 10001. (a) None of the funds made available in this Act may be used to engage in electronic surveillance in the United States except as authorized under--
(1) the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); or
(2) chapter 119 or chapter 121 of title 18, United States Code.
(b) For purposes of this section, the terms ``electronic surveillance'' and ``United States'' have the meanings given those terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
Mr. SCHIFF. Mr. Chairman, I would like to commend Chairman Young and Ranking Member Murtha for forging a strong bill to fund our Defense Department and DOD entities, and I applaud them for their hard work and dedication. As we consider this important bill today, I appreciate the opportunity to address a crucial issue.
At the outset, I want to thank my colleague Mr. Inslee for all of his leadership on this issue, which has been tremendous. We have been working side by side on this amendment today. I would also like to thank Mr. Flake that I have introduced legislation along with for his tremendous leadership. This amendment is, in fact, based on legislation that I have offered with Mr. Flake. I also want to thank Mr. Van Hollen for all of his leadership.
The bill that I introduced with Representative Flake several months ago was a bipartisan bill of five Democratic Members and five Republican Members, and addresses the NSA surveillance program that almost every Member of this body learned about in the morning newspaper.
This amendment recognizes two important principles: First, that the government must have all of the tools necessary and all of the authority required to pursue al Qaeda and other terrorists who would seek to harm our country. And second, this amendment recognizes that we are a Nation of laws.
While the President possesses the inherent authority to engage in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate such surveillance within the United States, and, in fact, Congress has spoken in this area through Title III and through the Foreign Intelligence Surveillance Act.
When Congress passed these statutes, it intended that they provide the sole authority for surveillance on American soil. Our amendment simply reinforces existing law that the government must obtain a court order when U.S. persons are targeted or surveillance occurs in the United States of America.
Recently when the Attorney General testified in the Judiciary Committee, I asked about the limiting principle of the NSA program; was it restricted only to international calls; what if the administration decided tomorrow it had the inherent authority to tap purely domestic calls between two Americans, did it feel it could do so without court order; and the Attorney General said that he would not rule it out. He would not rule out having the pure authority without going to court to tap the calls between two Americans on American soil.
So what is the limiting principle if this program can change from day to day without the input of Congress? The only limiting principle is the good faith of the executive, which, when the executive shows it is infallible, might be a sufficient limiting principle, but the executive is no more infallible than we are here in Congress, and so we have a role to play.
In enacting FISA, Congress specifically sought to balance our national security interests with legitimate civil liberty concerns. In so doing, Congress expressly permitted surveillance without court order for 15 days after the declaration of a war.
Additionally, Congress provided the authority to engage in electronic surveillance for up to 72 hours without court order.
Furthermore, after the September 11 attacks, the administration came to Congress and asked us to modify FISA to respond to the new challenges in the war on terror, and Congress responded by making those changes.
Electronic surveillance of al Qaeda operatives and others seeking to harm our country must continue; it simply can and should comply with the law.
We stand ready to work with the administration if further statutory revisions to FISA or other authorities are required to meet the new challenges in the war on terrorism. Until then, we must restore the rule of law. I urge the House to do so today.
I know my colleagues Mr. Sherman, Mr. Inslee, and Mr. Van Hollen will want to strike the last word to speak on this as well.
Mr. SAXTON. Mr. Chairman, I rise in opposition to the amendment.
Mr. Chairman, Chairman Hunter, the chairman of the Armed Services Committee is not here today due to a important personal commitment in his district, and he asked me to state his opposition to this amendment.
Mr. Chairman, I think it goes without saying that this is an extremely important provision, and this amendment would do, in my opinion and in Chairman Hunter's opinion, great damage to the ability of our country to provide national security for the American people.
That is why the administration also strongly opposes the Inslee-Schiff amendment. It is a direct effort to cut off the President's ability to engage in surveillance pursuant to his constitutional authority, and the authorization to use military force as passed by the Congress.
The program has been briefed to all members of the House and Senate Intelligence Committees. They are fully briefed to all aspects of the terrorist surveillance program and are conducting oversight.
I would just point out NSA Director General Hayden said on January 23, 2006, at the National Press Club, ``The TSP allows interception of the international communications of people with known links to al Qaeda and related terrorist organizations. There are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The purpose here is to detect and prevent future attacks.''
In underscoring the importance of this, on January 25, 2 days later, the President of the United States said, ``The 9/11 Commission made clear in this era of new dangers, we must be able to connect the dots before the terrorists strike so we can stop new attacks.'' And the NSA program, he said, is doing just that.
Those of us on the Armed Services Committee and other Members of Congress in various other capacities work night and day trying to provide a high level of national security for our country. This amendment would do damage to that effort. It would make that effort at least much more difficult.
To the credit of the CIA and to the credit of the administration and our government generally, we have been able to get through the years since September 11, 2001, without additional attacks.
The activities are reviewed for this program every 45 days. We are making every attempt to make sure that this program is carried out correctly and safely and doesn't infringe on the rights of the American people. The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general.
Mr. Chairman, I strongly oppose this amendment.
Mr. MURTHA. Mr. Chairman, I rise in opposition to this amendment.
The problem we have here is those of us who have been briefed on the program, even though admittedly we were not briefed until it became public, can't talk about the program. I was briefed for an hour and 45 minutes, and I feel comfortable that there are adequate safeguards. But we can't talk about the safeguards.
I asked NSA, what can we say about the program and not violate the security? And they said, well, you have to look at what the President said. Well, I looked at what the President said, and he didn't say very much. This is a real problem we are getting into, and the more we talk about it, the more difficult it makes it.
Now you are actually authorizing this program. If you vote for this, you authorize this program. You say you have safeguards. That is what you are going to have. If this passes, this authorizes this program. At one point we couldn't even say that this program existed. So I think this is a very difficult time for those of us who have been briefed about it.
And I know there are a lot of people in the executive branch that know about it. But the way I read this amendment, you say follow the proper procedure and you agree with the amendment. You agree with the procedures. I think that there is some real benefit if they do it right. But if this passes, I think you ought to know this is authorizing the program. And if it fails, you are saying, in fact, let them go ahead and not pass. So we are in a catch-22 position here, Mr. Chairman. And we can't talk about it at all. And I think we have to be careful that more and more people don't talk about it so that more people don't know the value of the program. We have got a heck of a problem here. And I recommend we vote against it. But if we vote against it, then we actually are saying, well, you can go ahead with the program as it is. And yet I believe there are enough safeguards. But if we pass it, we actually are authorizing the program.
I don't even know if we can work it out, Mr. Chairman, because there are so few people that really know about the program.
Mr. SCHIFF. Will the gentleman yield?
Mr. MURTHA. I will be glad to yield.
Mr. SCHIFF. I thank the gentleman for yielding. The amendment says that there is a prohibition on using funds to fund this program unless it meets the requirements of FISA. Any part of the program that does meet the requirements of FISA, meet the existing law passed by the Congress, could continue to be funded. Those parts that don't meet the requirements of FISA, the administration will have to go back.
Mr. MURTHA. Let me take back the time. I agree with that. I agree. And I think there are sufficient safeguards in the program already. We are in a bad situation here, Mr. Chairman. I don't know that I can say any more.
Mr. YOUNG of Florida. Mr. Chairman, I rise in opposition to the amendment. As Mr. Murtha has suggested, there is a lot that can't be said about this amendment and about this program. But what I would like to say is, let's don't tie our hands behind our back when we are fighting a vicious, cruel enemy.
Intelligence is extremely important in the war against terrorism. First of all, you don't have, in this particular war, you don't have an army against an army. You don't have a country against a country. You have terrorists attacking innocent people here in the United States on September 11, and leading up to September 11, and anywhere else in the world that they decide that they are going to attack.
One of the best defenses against these attacks is the ability to know where they might be or when they might strike or what the target might be. Don't deny the people on the front lines of this intelligence war and information war and the hot war, don't deny them every tool that they can possibly have.
As Mr. Murtha said, for those that have been briefed on this program on a regular basis, I am not aware of anyone who is concerned that the rights of Americans to their privacy have been violated. I certainly do not believe that the rights of Americans have been violated in this program. And so I think it is crucial to oppose this amendment; this is far beyond politics. It goes a lot deeper. This goes to the safety and the security of American people wherever they might be. And it is unfortunate that we can't reveal everything that is done, how it is done, where it is done, when it is done; but believe me, it is effective and the privacy of the American people have been protected.
Mr. SCHIFF. Will the gentleman yield?
Mr. YOUNG of Florida. Yes, of course I would yield.
Mr. SCHIFF. Mr. Chairman, I appreciate your thoughts and I appreciate your yielding. And we are up against a vicious enemy, and we ought to have every power of intelligence and every tool in the tool box and I completely agree with that. I think we can do that within the laws that the Congress has passed. And the gravamen of my concern is something that took place in the Senate, when one of our GOP colleagues asked the administration, during the debate over the PATRIOT reauthorization, which I supported, do we need to change FISA. We were making modest changes to FISA, and the Republican Senator said, Do we need to do something larger? And the administration response was no, that FISA is operating just fine as it is.
Now, if there are changes that need to be made, there is a 72-hour after-the-fact authorization. If that window is too short, it can be lengthened. If there are other problems, they be changed. And all that can be changed without disclosing to the public the nature of the program itself.
I haven't been briefed on it. I am not one of the lucky few, or maybe I am lucky. But it concerns me when the administration says we don't need to change existing law, when I think we can retain all of these tools, but the Congress can play its role in making sure that these programs are authorized by law, that they are not being conducted extralegally.
Mr. YOUNG of Florida. Well, let me reclaim my time and suggest that if you want to rewrite FISA, you don't do it on the floor on an appropriations bill. You introduce a bill, or you go to the proper committee of proper jurisdiction. This is not something you do on the floor. This is serious. It is not something you do on the floor without any real hearings or consideration. If you want to change FISA, let the authorizing committee change it. They are the ones that have the jurisdiction.
Mr. DICKS. Will the gentleman yield?
Mr. YOUNG of Florida. I will.
Mr. DICKS. I am also one of those who have not been briefed on this particular program. But I would like to ask the gentleman, is the gentleman suggesting that the administration is not complying with FISA?
Mr. YOUNG of Florida. I am not.
Mr. DICKS. Well, you know, that would certainly clear it up without getting into any classified information if somebody here, the chairman of the Intelligence Committee or the chairman of the Full Committee or someone can say, yes, the administration is complying with FISA, and they have taken this program to the FISA court for clearance. That is what people who support this amendment are concerned about, that Congress enacted legislation here saying that if you want to go out and gather this kind of information, you have to first go to the FISA court to get approval and to show cause. I think that is what this really all gets down to.
The CHAIRMAN. The time of the gentleman from Florida (Mr. Young) has expired.
(On request of Mr. Dicks, and by unanimous consent, Mr. Young of Florida was allowed to proceed for 2 additional minutes.)
Mr. DICKS. So that is the question we have here, Mr. Chairman.
Mr. YOUNG of Florida. I will continue to yield in just a minute. On the legal aspects of this, I am going to Mr. Lungren. I think he is prepared, and he will probably get his own time, because I am limited to 2 minutes.
But in the minute I have left, I will yield to Mr. LaHood.
Mr. LaHOOD. Mr. Chairman, let me just say I am the longest-serving member of the Intelligence Committee. I am in my eighth year. I am the vice chairman of the committee.
If it were disclosed, the answers that you want, it would be a violation of those who serve on the committee and those who have been briefed. They can't disclose that information. They will be thrown off the committee.
Mr. DICKS. I was on the committee for 8 years and served as the ranking member.
Mr. LaHOOD. I know you were. But this is highly classified information.
The CHAIRMAN. The gentleman from Florida has the time.
Mr. YOUNG of Florida. Mr. Chairman, I have yielded to the gentleman from Illinois.
Mr. LaHOOD. This is highly classified information. What you all need to know is, the people that you have put your trust in, that the leadership have put their trust in, those that serve on the Defense Appropriations Subcommittee, those that serve on the Intelligence Committee have been briefed. Now you have to trust them that they know what is going on here.
All 435 members can't be briefed. You know why they can't be briefed, because we all love to talk and it would get out.
So what I am saying to you, the gentleman from California, the author of the amendment, you need to trust Mr. Murtha, you need to trust the chairman of the committee. You need to trust Mr. Hoekstra. You need to trust Jane Harman. These are people with the responsibility from your leadership to serve on these committees. They know what is going on.
Mr. SCHIFF. Will the gentleman yield so I can respond to the question?
Mr. YOUNG of Florida. Mr. Chairman, I would suggest that the other Members get their own time.
Mr. OBEY. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I do not want to get into the specific debate on this amendment because I think there are equities on both sides. But I must comment on a statement that was just made by the gentleman from Illinois when he said that the reason this information can't be more broadly shared is because people in Congress like to talk.
When Mr. Negroponte was before the Defense Appropriations Subcommittee, and I have been an ex oficio member of that committee now for over 12 years, but when I asked Mr. Negroponte, who, after all, is the Director of Intelligence, when I asked him whether or not he could cite a single instance in which any member of the Defense Appropriations Committee had ever leaked any classified information, he indicated he could not.
I also asked him, and I think this is an accurate recollection, I also asked him if he could tell me how many times stories had appeared in the Washington Times that his own agency thought had been leaked by the executive branch of government.
And I asked him how many times he thought those leaks had been provided by the Defense Appropriations Subcommittee. And his response was, to the best of his knowledge, none.
And yet, I want to make clear, not all members of the Defense Appropriations Subcommittee have been briefed. Now, I believe they should have, because taxpayers dollars go through the appropriations bill, and I think every member of that subcommittee needs to know what the facts are on this case.
But the fact is, let's not get into the belief that it is the Congress who routinely leaks. The White House routinely leaks more classified information than the Congress even has. And anybody who doesn't believe that doesn't know the score.
Mr. DANIEL E. LUNGREN of California. Will the gentleman yield?
Mr. OBEY. Yes, I would be happy to yield.
Mr. DANIEL E. LUNGREN of California. I can't quote Mr. Negroponte, but I can quote Benjamin Franklin who, in 1776, explained the unanimous decision of the Committee on Secret Correspondence for not telling their colleagues in the Continental Congress about a covert operation. And he said we find by fatal experience that Congress--
Mr. OBEY. I am going to take back my time. I was prepared to entertain a serious question. That is not a serious question. I am not interested in what happened 200 years ago. I am interested in what is happening today and tomorrow.
Mr. TIAHRT. Mr. Chairman, I move to strike the requisite number of words.
Mr. Chairman, I am a member of the Defense Subcommittee on Appropriations, as well as the House Select Committee on Intelligence. I'd like to answer several questions that have come up with this amendment.
When questioned about the purpose of this amendment, the author said that he thought that the FISA law, or the Foreign Intelligence Surveillance Act, should be rewritten. And there are some who believe that legislation should be rewritten because it was originally penned in 1978, and we have had significant changes in technology since that time. Each of us carries a phone or BlackBerry, none of which existed in that format back at the time. So there have been changes that have gone on to our technology.
But to answer the question of the gentleman from Washington, the administration does believe that they are within the current law, and they do believe they have the authority to do what the gentleman has alleged that they are doing. I don't think that there is anything that really needs to be expressed much beyond this, except that the gentleman from California (Mr. SCHIFF) said he believes that FISA should be rewritten, if it doesn't meet the requirements of today's environment, it should be rewritten. This amendment doesn't do that. All this amendment does is strike funds for any electronic surveillance program in the United States. And I think that would be an opportunity for putting this country in peril.
One of the reasons we haven't had an attack since September 11, 2001, is because we have used every means necessary to keep ahead of the terrorists.
The terrorists have used videos to advance their ideals. They have used the Internet. They have used Web sites. They have tried to raise money and reach out and touch Americans in a negative way again and again and again. And this country has done everything possible to prevent that from happening, and they have done it successfully, and they have done it by using technology. And this amendment appears to be tying hands on our ability to use technology, and I think that is wrong.
Mr. SCHIFF. Mr. Chairman, will the gentleman yield?
Mr. TIAHRT. I yield to the gentleman from California.
Mr. SCHIFF. Mr. Chairman, I thank the gentleman for yielding.
Very quickly, the only thing the amendment provides is that surveillance on American soil cannot be funded if it is not in compliance with FISA. So if you are in compliance, if this program complies with FISA, it could go on.
Just to address the chairman's point, and this is on the same point you are making, too, which is we should not be debating this on the House floor, that you should introduce the bill, and it should be heard in committee. Mr. Chairman, we have introduced the bill. I along with Mr. Flake, Mr. Inglis, Mr. Leach, and others have introduced the bill. We have not been able to get a hearing in committee, and so the only opportunity for us to raise this issue is on the House floor
Mr. TIAHRT. Reclaiming my time, I suggest you pursue your bill then, because what you are doing here absolutely ties the hands of the Federal Government from protecting us, and it does not rewrite FISA.
Now, let me also make this argument that FISA is a very narrow portion of our law. There is a much broader scope that is applicable to the situation necessary to protect this country. So focusing on one portion of the law is tying our hands and trying to make the whole world comply with this one narrow segment of law, in my view, it ties our hand, and I don't think we should do it.
What I would suggest is that you withdraw this amendment, pursue your bill, along with the Republican cosponsors, because this does tie our hands. It gives us an opportunity to be less safe, and I suggest the gentleman withdraw his amendment.
Mr. INSLEE. Mr. Chairman, I move to strike the last word.
Mr. Chairman, there are times where the Constitution needs to be considered, and this is one of those times. Those of us who support this amendment, I hope that both Republicans and Democrats will do so because I think Republicans and Democrats ought to agree on one central proposition, and that is the proposition that our government ought to protect our citizens aggressively, assertively. We need electronic surveillance to be doing it to the full extent of the law, and that intelligence should be done in compliance with the American way.
There is an American way to do intelligence, and there is a Chinese way to do intelligence. There is a Turkish way to do intelligence. There is a Russian way to do intelligence. And there is an American way to do intelligence. And the American way to do intelligence is to do a very simple thing: Comply with the law that has been passed and signed by Congresses and Presidents.
And all this amendment does is say a very simple proposition: You don't spend taxpayers' money to do illegal acts by the Federal Government. That is all it says. And when it passes, we will do assertive, aggressive intelligence of these scoundrels by doing a very simple thing: Get a warrant. And if you do not have time to get a warrant, get it 72 hours after you do the intelligence, because the FISA Court allows that to happen. That is the simple proposition here.
Now, why is that important? It is important because the people who fought the Revolution realized that no American is perfect, and that includes no American President. To the proposition that all men are created equal, you can add the proposition that no man is created perfectly. And that is why we demand some judicial oversight on this.
And, by the way, the central