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.
“RESTORE ACT OF 2007” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E2476-E2477 on Dec. 4, 2007.
The publication is reproduced in full below:
RESTORE ACT OF 2007
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speech of
HON. SHEILA JACKSON-LEE
of texas
in the house of representatives
Thursday, November 15, 2007
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of H.R. 3773, the ``Responsible Electronic Surveillance That Is Overseen, Reviewed, and Effective Act of 2007.'' I support this legislation, the RESTORE Act, because it corrects the damage done by the misnamed Protect America Act and restores this Nation's commitment to the rule of law, the dignity of the individual, and the separation of powers. This legislation is worthy of an aye vote from all Members because it restores allegiance to the Constitution and gives our intelligence agencies all the tools they need to conduct the foreign surveillance necessary to keep our country safe.
Mr. Speaker, in August of this year, I strongly opposed S. 1927, the so-called ``Protect America Act'' (PAA) when it came to a vote on the House floor. And I was a very reluctant supporter of H.R. 3356, the House alternative that attracted a majority of votes, but not a two-
thirds super-majority, 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. But in reality it would have eviscerated 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.
The legislation before us, the RESTORE Act, H.R. 3773 is superior to the PAA by orders of magnitude. This is due in no small measure, Mr. Speaker, to the willingness of the leadership to reach out to and work with all members of the House. The result shows. The RESTORE Act does not weaken our Nation's commitment to its democratic traditions. Rather, it represents a sound policy proposal for achieving the only legitimate goals of a terrorist surveillance program, which is to ensure that American citizens and persons in America are secure in their persons, papers, and effects, but terrorists throughout the world are made insecure. Let me direct the attention of all members to several of the more important aspects of this salutary legislation.
First, H.R. 3773 explicitly affirms that that the exclusive law to follow with respect to authorizing foreign surveillance gathering on U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As initially enacted by Congress in 1978, the exclusivity of FISA was undisputed and unambiguous. I hasten to add, however, that while FISA remains the exclusive source of law, H.R. 3773 recognizes that the law as enacted in 1978 can and should be adapted to modern circumstances and to accommodate new technologies. And it does so by making clear that foreign to foreign communications are not subject to the FISA, even though modern technology enables that communication to be routed through the United States.
Second, under H.R. 3773, 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.
Third, the bill does not grant amnesty to any telecommunications company or to any other entity or individual that helped Federal intelligence agencies spy illegally on innocent Americans. I strongly support this provision because granting such blanket amnesty for past misconduct will have the unintended consequence of encouraging telecommunications companies to comply with, rather than contest, illegal requests to spy on Americans. The only permissible path to legalization of conduct in this area is full compliance with the requirements of the Foreign Intelligence Surveillance Act.
Moreover, Mr. Speaker, it is important to point out that the loudest demands for blanket immunity comes not 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. I call my colleagues' attention to an article published in the Washington Post last Sunday, in which it is reported that Joseph Nacchio, the former CEO of Qwest, alleges that his company was denied NSA contracts after he declined in a February 27, 2001 meeting at Fort Meade with National Security Agency (NSA) representatives to give the NSA customer calling records.
Mr. Speaker, the authorization to conduct foreign surveillance on U.S. soil provided by H.R. 3773 is temporary and will expire in 2 years if not renewed by the Congress. This is perhaps the single most important limitation on the authority conferred on the Executive Branch by this legislation. The good and sufficient reason for imposing this limitation is because the threats to America's security and the liberties of its people will change over time and thus require constant vigilance by the people's representatives in Congress.
To give a detailed illustration of just how superior the RESTORE Act is to the ill-considered and hastily enacted Protect America Act, I wish to take a few moments to discuss an important improvement in the bill that was adopted in the full Judiciary Committee markup.
The Jackson-Lee Amendment added during the markup made a constructive contribution to the RESTORE Act by laying down a clear, objective criterion for the Administration to follow and the FISA court to enforce in preventing reverse targeting.
``Reverse targeting,'' a concept well known to members of this Committee but not so well understood by those less steeped in the arcana of electronic surveillance, is the practice where the government targets foreigners without a warrant while its actual purpose is to collect information on certain U.S. persons.
One of the major concerns that libertarians and classical conservatives, as well as progressives and civil liberties organizations, have with the PAA is that the understandable temptation of national security agencies to engage in reverse targeting may be difficult to resist in the absence of strong safeguards in the PAA to prevent it.
My amendment reduces even further any such temptation to resort to reverse targeting by requiring the administration to obtain a regular, individualized FISA warrant whenever the ``real'' target of the surveillance is a person in the United States.
The amendment achieves this objective by requiring the administration to obtain a regular FISA warrant whenever a ``significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States.'' The current language in the bill provides that a warrant be obtained only when the Government ``seeks to conduct electronic surveillance'' of a person reasonably believed to be located in the United States.
It was far from clear how the operative language ``seeks to'' is to be interpreted. In contrast, the language used in my amendment,
``significant purpose,'' is a term of art that has long been a staple of FISA jurisprudence and thus is well known and readily applied by the agencies, legal practitioners, and the FISA Court. Thus, the Jackson-
Lee Amendment provides a clearer, more objective, criterion for the administration to follow and the FISA court to enforce to prevent the practice of reverse targeting without a warrant, which all of us can agree should not be permitted.
Let us be clear, Mr. Speaker, that nothing in the bill or in my amendment requires 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, the bill requires, as our amendment makes clear, 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.
This will usually happen over time, and the Government will have the time to get an order while continuing its surveillance. And it is the national security interest to require it 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.
The Jackson-Lee amendment gives the Government precisely what Director of National Intelligence McConnell asked for when he testified before the Senate Judiciary Committee: ``It is very important to me; it is very important to members of this Committee. We should be required--we should be required in all cases to have a warrant anytime there is surveillance of a US [sic] person located in the United States.''
In short, the Jackson-Lee amendment makes a good bill even better. For this reason alone, civil libertarians should enthusiastically embrace the RESTORE Act.
Nearly 2 centuries ago, Alexis de Tocqueville, who remains the most astute student of American democracy, observed that the reason democracies invariably prevail in any martial conflict is because democracy is the governmental form that best rewards and encourages those traits that are indispensable to martial success: initiative, innovation, resourcefulness, and courage.
Mr. Speaker, 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 country 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.
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