An excerpt of the Congressional Daily Record from May 10, 2007 provided as errata a current topic posted by Congressman Adam Schiff at TPM Cafe, titled: "Pulling the Plug on Warrantless Eavesdropping of Americans"

Representatives Adam Schiff's and Jeff Flake's comments at the introduction of their jointly sponsored amendment, H. AMDT. 182, for H.R. 2082: Intelligence Authorization Act for Fiscal Year 2008, which was Introduced and Approved May 10, 2007. Representatative Wilson's (NM) dissent, which occured between the statements made by Wilson and Flake is also published.here

Data Source: The Congressional daily Record May 10, 2007; Pages H490-H4905; Government Printing Office DocID:cr10my07pt2-22

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Amendment No. 10 Offered by Mr. Schiff

The Chairman: It is now in order to consider amendment No. 10 printed in House Report 110-144.

Mr. Schiff: Madam Chairman, I offer an amendment.

The Chairman: The Clerk will designate the amendment.

The text of the amendment is as follows:

Amendment No. 10 offered by Mr. Schiff:

At the end of subtitle A of title V (page 48, after line 5), add the following new section:

SEC. 503. REITERATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AS THE EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE MAY BE CONDUCTED FOR GATHERING FOREIGN INTELLIGENCE INFORMATION.

(a) Exclusive Means.--Notwithstanding any other provision of law, the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance may be conducted for the purpose of gathering foreign intelligence information.

(b) Specific Authorization Required for Exception.-- Subsection (a) shall apply until specific statutory authorization for electronic surveillance, other than as an amendment to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is enacted. Such specific statutory authorization shall be the only exception to subsection (a).

(c) Definitions.--In this section:

(1) Electronic surveillance.--The term "electronic surveillance" has the meaning given the term in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).

(2) Foreign intelligence information.--The term "foreign intelligence information" has the meaning given the term in section 101(e) of such Act (50 U.S.C. 1801(e)).

The Chairman: Pursuant to House Resolution 388, the gentleman from California (Mr. Schiff) and a Member opposed each will control 5 minutes.

The Chair recognizes the gentleman from California.

Mr. Schiff: Madam Chair, I yield myself 3 minutes.

Madam Chair, today I offer an amendment with my Republican colleague Jeff Flake from Arizona that would respond to the President's unilateral assertion of power with regard to the electronic surveillance of Americans on U.S. soil and reassert that our existing statutes govern the operation of such surveillance.

Madam Chair, the Federal Government has a duty to pursue al Qaeda and other enemies of the United States with all available tools, including the use of electronic surveillance, to thwart future attacks on the United States and to destroy the enemy.

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.

When Congress passed the Foreign Intelligence Surveillance Act, it intended for this statute to provide the sole authority for surveillance of Americans on American soil for the purpose of gathering foreign intelligence information. Our amendment reiterates this important principle.

The President has argued that the authorization for the use of military force provided him with the authority to engage in warrantless electronic surveillance of Americans.

It is hard to believe that any of us contemplated, when we voted to authorize the use of force to root out the terrorists who attacked us on September 11, that we were also voting to nullify FISA. Our amendment makes clear that in the absence of explicit statutory authority, FISA is the exclusive authority for the conduct of domestic electronic surveillance of Americans. While the administration appears to have finally agreed that electronic surveillance occurring as part of the Terrorist Surveillance Program, or TSP, should cease to operate without the approval of the FISA court, the administration has not conceded that it cannot conduct such electronic surveillance of Americans unilaterally outside of FISA with no judicial oversight either now or in the future.

While we have been told that surveillance in this program was limited to phone calls where one of the parties is outside of the United States, there appears to be no limiting principle to the Executive's claim of authority provided by the military force resolution. In fact, when we questioned the Attorney General on this point in the last session, he would not rule out the proposition that the Executive has the authority to wiretap purely domestic calls between two Americans without seeking a warrant.

No one in Congress would deny the need to tap certain calls under court order, but if the government can tap purely domestic phone calls between Americans without court approval, there is no limit to executive power. Congress cannot be silent in the face of this assertion of authority.

In working to meet the real national security needs of the country, we must also ensure that Congress does not abdicate its responsibility to ensure that fundamental liberties are not compromised. Absent congressional action, law-abiding U.S. citizens may continue to have reasonable fear of being the subject of extra-judicial surveillance.

Madam Chairman, I reserve the balance of my time.

Mrs. Wilson of New Mexico: Madam Chairman, I rise to claim the time in opposition to the amendment.

The Chairman: The gentlewoman is recognized for 5 minutes.

Mrs. Wilson of New Mexico: Madam Chairman, I yield myself such time as I may consume.

When the President acknowledged the existence of the Terrorist Surveillance Program, he claimed the inherent authority, under article II of the Constitution, as the Commander in Chief to be able to conduct that surveillance. Now, whether you agree or don't agree with his interpretation of the Constitution, this amendment, and a bill with this amendment in it, does not change the Constitution.

I will admit to the gentleman from California I personally believe that the legal arguments that were presented in favor of the Terrorist Surveillance Program were not strong. They weren't strong at all. And that is why I demanded more rigorous oversight to the program and proposed legislation to change the Foreign Intelligence Surveillance Act so that we can listen to our enemies and protect the civil liberties of Americans.

The sad thing is that the bipartisan leadership of this body, Democrat and Republican, knew for 5 years this program was going on and did nothing to update the laws or even propose that perhaps this was wrong to do this this way. They remained silent. The failure is in the Congress.

We now know that the Foreign Intelligence Surveillance Act, as it is currently written, is not getting us critical information about our enemies and also, frankly, not protecting the civil liberties of Americans. It is broken and not working.

The Director of National Intelligence testified last week in the Senate Select Committee on Intelligence, saying that we are missing important information because this law is trapped in 1970s technology.

In January of this year, the Attorney General wrote to the Congress and said that we now have innovative orders from the Foreign Intelligence Surveillance Court. By "innovative" what he really meant is that we are on very fragile legal ground. I describe it as putting a twin-size sheet on a king-size bed, and everybody on the Intelligence Committee knows exactly what I mean. We have one judge, in a nonadversarial proceeding, in secret session, who has approved some innovative orders. He is way out on a legal limb. So what will the next judge do? And after this amendment passes saying, by golly, we are determined to stay in the 1970s, the Congress is happy with a 1970s law governing 1970s technology, what is the next judge going to do? And how does that compromise our national security? We have a problem.

In 1978 almost all local communications went over a wire and almost all long-haul communications went over the air. The statute sets up different regimes for what to do for over-the-wire communications that you need a warrant for to collect foreign intelligence information. Over the air the sky is the limit. We now, in the 21st century, have things completely reversed. Now almost all local calls are over the air. 230 million Americans have cell phones, and yet almost all long- distance calls are over wires. The information that we critically need is on the wires.

This law is outdated, and we are stuck with our heads in the sand in 1970s law. And your amendment insists that we stay there.

I will oppose this amendment and urge my colleagues to do the same.

Madam Chairman, I reserve the balance of my time.

Mr. Schiff: Madam Chairman, as my colleague from California (Ms. Harman) points out, FISA has been amended 12 times, and, moreover, we have proposed to amend FISA to modernize it at present, and Mr. Flake and I propose to amend it as well.

The argument of my colleague seems to be that FISA needs to be amended,it hasn't been amended yet; so we should allow the President to simply ignore it. That, I submit, is not constitutional and not desirable.

Madam Chairman, I yield 1½ minutes to my colleague from Arizona (Mr. Flake).

Mr. Flake: Madam Chairman, I thank Mr. Schiff for yielding, and I appreciate working with him on this important amendment and on this issue for a long time.

Madam Chairman, this amendment would reiterate that FISA is the exclusive means by which domestic electronic surveillance can be conducted for the purpose of gathering foreign intelligence information.

As has been stated before, we have, on the Judiciary Committee, for years been asking the administration what can we not do within FISA, do we need to change FISA in order to be able to conduct surveillance we need within FISA. We have never been given compelling information or evidence why we can't do what we need to do within FISA. As Mr. Schiff mentioned, if we do need to change FISA to update it again, as it has been changed and updated multiple times, then we should do it. However, we simply can't say FISA is insufficient; so go around it, and we don't want to know what goes on outside of it. Go ahead with the Terrorist Surveillance Program. We will have no congressional oversight. That is simply unacceptable. If we do need to change FISA, if we do need to modernize it, let's modernize it again, again, and again. But let's make sure that Congress maintains its prerogative to regulate the surveillance that goes on to make sure that it is done with civil liberties in mind. That is what this amendment seeks to do, and I am pleased to work with Mr. Schiff on it.

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