The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“PROTECT AMERICA ACT OF 2007” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1840-E1842 on Sept. 7, 2007.
The publication is reproduced in full below:
PROTECT AMERICA ACT OF 2007
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speech of
HON. DENNIS MOORE
of kansas
in the house of representatives
Saturday, August 4, 2007
Mr. MOORE of Kansas. Mr. Speaker, I rise today to express my disappointment regarding the House of Representatives' approval of S. 1927, legislation greatly expanding the Bush Administration's eavesdropping authority beyond even what Administration officials requested. I urge the House Judiciary Committee to promptly consider and report improved legislation that will provide the necessary surveillance authority our intelligence services need to protect our nation, while protecting our citizens' most basic expectation of privacy and fundamental civil liberties that are guaranteed by our constitution. Specifically, the Fourth Amendment to the U.S. Constitution states plainly: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.''
I have been a longstanding supporter of efforts to provide our intelligence and law enforcement agencies with all the necessary tools they need to monitor potential agents with terrorist intentions against the United States. Following the awful terrorist attacks of September 11, 2001, on our country, I joined 356 of my House colleagues to vote for the USA PATRIOT Act of 2001 (P.L. 107-56). The legislation gave federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence gathering purposes. Among other additional provisions, the law also created new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists.
The law contained, however, provisions that allowed for enhanced surveillance procedures that many citizens were concerned restricted civil liberties. I subsequently supported several amendments to various appropriations measures that would have improved civil liberties protections, namely: (1) Rep. Bernie Sanders' amendment to fiscal year 2006 Science, State, Justice and Commerce Appropriations Act which would have exempted libraries and bookstores from section 215 of the PATRIOT Act while increasing congressional oversight; and (2) Rep. Butch Otter's amendment to a fiscal year 2004 appropriations measure that would have prevented the use off section 213 of the PATRIOT Act that extended so-called ``sneak and peek'' authority to local police that previously was made available only to foreign intelligence investigators. Previously, police had to ``knock and announce'' their intention of searching before executing any warrant. Even though the Sanders amendment passed the House by a vote of 238-187, and the Otter amendment passed by a vote of 309-118, they both were unfortunately pulled from their respective appropriations measures before they were signed into law by the President.
Several sections of the PATRIOT Act were set to expire on December 31, 2005, unless they were extended. These ``sunset provisions'' included wiretapping privileges, sharing wiretap and foreign intelligence information, FISA authority and jurisdiction, voicemail warrants, and various other powers. On July 21, 2005, the House approved H.R. 3199 by a vote of 257-171. This legislation would have made permanent 14 of the 16 provisions that were set to expire in 2005. The remaining two provisions, involving the government's ability to use roving wiretaps and the government's access to business and library records, were assigned 10-year sunsets, at which point they will either be renewed or will expire. While the majority of the sections remained unchanged, during consideration of this legislation, the House adopted a few measures that would help protect government abuses of civil liberties. Among these were amendments that would require the Director of the FBI to personally review any and all requests for library or bookstore records under Section 215 of the PATRIOT Act, as well as an amendment that would allow the recipient of a national security letter
(NSL) to consult with an attorney and challenge the issuance of the letter in court. I voted for both of these amendments. I voted against H.R. 3199, however, because I didn't believe it was a good idea to make permanent policy for the United States concerning our fundamental rights and freedoms during extraordinary times of war. We must never allow terrorists to alter the freedoms that define our country and make us the greatest nation in the world.
On July 29, 2005, the Senate approved legislation that would also make permanent 14 of the 16 provisions set to expire in 2005; however, it would have placed 4-year sunsets on the two remaining provisions and would have placed additional checks on government power that would help ensure the preservation of our valuable civil liberties. These two pieces of legislation were sent to a House-Senate conference committee to resolve their differences; In December 2005, a new agreement was reached in conference proposing 4-year expiration dates for the two provisions involving the government's ability to use roving wiretaps and the government's access to business and library records, as well as a 4-year sunset to a provision in the 2004 intelligence overhaul law
(P.L. 108-458) that allows law enforcement to seek warrants against
``lone wolf'' terrorists not connected to foreign powers. On December 14, 2005, the House agreed to the conference report by a vote of 251-
174. I voted for the final version of the legislation because I was satisfied with the shorter expirations on some of the more contentious provisions and I was concerned about the possible effect on our national security if these provisions of the PATRIOT Act were allowed to expire.
After being approved in the House, however, several members of the Senate remained concerned about the government's ability to acquire records and obtain administrative search warrants. Several Senators later announced an agreement they had reached with the White House, to make three changes to the previously agreed-to conference report relating to the government seizure of records. Specifically, these changes: (1) Allow recipients of a business records request to challenge a gag order, although to overturn it they would have to wait one year and prove the government acted in ``bad faith''; (2) remove a requirement that recipients of national security letters, which do not require court approval, disclose the name of any attorney they consult or intend to consult; and (3) clarify language in the 2001 law to ensure that libraries operating in traditional roles and not as Internet service providers would not be subject to national security letters. The House later agreed to these amendments by a vote of 280-
138, which I supported. On March 9, 2006, President Bush signed the final version of H.R. 3199 (P.L. 109-177) and the S. 2271 amendments
(P.L. 109-178) into law.
In order to effectively fight the war on terror we need intelligence, but this intelligence should be gathered in a legal manner and consistent with our constitution. Traditionally, the NSA's intelligence-gathering role has been limited to intercepting international communications as part of the government's foreign spying activities. Under the 1978 Foreign Intelligence Surveillance Act (FISA, P.L. 95-511), the federal government is required to obtain a warrant to conduct domestic wiretaps, but the NSA program disclosed by President Bush and his administration appears to have operated outside the FISA law.
In the 109th Congress, Rep. Heather Wilson introduced H.R. 5825, the Electronic Surveillance Modernization Act. This legislation would have given the President expanded authority to authorize electronic surveillance of communications by suspected terrorists without first obtaining approval from the FISA court. Specifically, it allowed the President to authorize warrantless electronic surveillance for up to 90 days in three circumstances--an armed attack against the United States, a terrorist attack against the United States, or if there is an
``imminent threat'' that is likely to cause death or widespread harm. The measure also would have extended the amount of time intelligence agencies can conduct warrantless electronic surveillance in ``emergency situations'' to seven days, from the current three-day limit.
The FISA law then contained certain exceptions for intelligence operations on U.S. soil--it permitted the president to authorize the Justice Department to conduct electronic surveillance or physical searches without approval by the FISA court to gather foreign intelligence for up to 15 days after Congress enacted a declaration of war. In addition, it allowed the federal government to conduct electronic surveillance without the court's approval in ``emergency situations,'' provided that the government seeks approval from the FISA court within three days of initiating emergency surveillance.
The Electronic Surveillance Modernization Act, however, represented a significant departure from the protections put in place under FISA in 1978. Nowhere in the Foreign Intelligence Surveillance Act does it state that the president can bypass the process of seeking a court order to spy on American citizens through an executive order. I was concerned that this legislation was a political attempt to retroactively justify the President breaking the law. I fully believe that if the President followed the law and approached the FISA court and Congress for approval of such programs, that Congress and the FISA court would gladly give the President the powers he needs to combat terrorism. For these reasons, I voted against H.R. 5825 when it was brought to the House floor for a vote on September 28, 2006. This legislation was approved in the House by a vote of 232-191, but did not receive a vote in the Senate, effectively killing the legislation in the last Congress.
Attorney General Alberto Gonzales announced on January 17, 2007, that the FISA court authorized and issued orders on January 10, 2007, granting wiretaps that the Administration requested. Subsequently, the Justice Department has shared those classified documents with the House and Senate Intelligence Committees, as well as the Chairmen and Ranking Members of the House and Senate Judiciary Committees.
The U.S. Department of Justice's Office of the Inspector General released a 126-page audit report on March 9, 2007, entitled ``A Review of the Federal Bureau of Investigation's Use of National Security Letters.'' In this report, it was revealed that FBI agents were using national security letters to obtain personal information such as phone, internet, and financial records of individuals without court orders. The audit also found that 22 percent of these letters were not recorded and of those that were recorded, some were issued without proper authority. Senators Arlen Specter and Patrick Leahy have voiced concern over the findings of this report. I am deeply troubled by this report and strongly believe vital intelligence should be gathered in a manner that is fully consistent with our laws and constitution.
The congressional leadership spent many months in 2007 negotiating a reauthorization of the FISA law with the Bush Administration and Admiral Michael McConnell, Director of National Intelligence (DNI). Both Democrats and Republicans agree that we need to update the FISA law to incorporate new technologies, such as cell phones and e-mail, which did not exist when the original FISA law was written. Prior to the August District Work Period, the Bush Administration pressed the congressional leadership to pass a short-term FISA update. During negotiations, Director McConnell told the congressional leadership that he supported several technical changes that: (1) allowed foreign targets to be added a ``basket warrant'' after the warrant was approved; (2) expanded the draft bill to apply to ``all foreign intelligence'' from only intelligence ``relating to terrorism''; and
(3) eliminated the requirement that the FISA court adjudicate how recurring communications into the United States from foreign targets would be handled. Following these improvements to the draft bill, the DNI told congressional leadership that with these changes, he could support the bill because it would ``significantly enhance America's security.'' I voted for the final version of this legislation, H.R. 3356, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007. Even though a majority (218-
207) voted in favor of H.R. 3356, the bill did not pass as it was considered under suspension of the rules (2/3 vote to approve required).
The Senate passed a much different version of FISA legislation, S. 1927, the Protect America Act sponsored by Senators Mitch McConnell and Kit Bond. This legislation greatly exceeds what the Bush Administration requested in legislation, providing a virtual blank check for intelligence agencies to eavesdrop, including on the conversations of U.S. citizens, with essentially no oversight by the FISA court or Congress. The legislation allows the U.S. Attorney General to decide when to eavesdrop on any e-mail message or phone call without a warrant, so long as one of the people communicating is ``reasonably believed'' to be outside the country. That is a vague term that the Administration is allowed to interpret however they want, greatly expanding its surveillance powers, while the legislation does not provide the courts with any real power to supervise this surveillance. Proponents of S. 1927 point out that the legislation has a six month sunset and will expire in February 2009. This sunset is artificial, as the orders in effect in February 2009 could last for up to a year, essentially for the remainder of the Bush Administration with no oversight. For these reasons, I voted against S. 1927 when the House considered the measure on August 4, 2007. The House approved the legislation by a vote of 227-183, and the President signed it into law on August 5, 2007 (P.L. 110-55).
Speaker Nancy Pelosi wrote a letter to Judiciary Chairman John Conyers and Select Intelligence Chairman Silvestre Reyes on August 4, 2007, urging that the House of Representatives should consider comprehensive FISA reauthorization legislation. I agree with her statement that: ``Many provisions of this legislation are unacceptable, and although the bill has a six-month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken.''
As a co-equal branch of government, it is necessary that Congress fully understand how the Bush Administration executes intelligence activities in order to exercise proper oversight. I look forward to working with my colleagues in Congress to ensure that law enforcement agencies have strong, flexible tools to intercept the communications of terrorists, and at the same time protect our citizens' civil liberties from unwarranted government probing.
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