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WASHINGTON D.C. -- Rep. Jane Harman (D-Venice), Ranking Member on the House Intelligence Committee, today made the following remarks on the floor of the House of Representatives during final debate of the White House/Wilson Foreign Intelligence Surveillance Act (FISA) Reform Bill, HR 5825:
Five years after 9/11, much remains to do. We still must learn the whereabouts of Osama bin Laden and Zawahiri so we can capture or kill them; achieve intelligence dominance in Iraq so we can protect our forces; penetrate global terror cells to prevent them from attacking us; plug gaps in our homeland security; and prevent nuclear material from being acquired by hostile forces bent on using it against America and its allies.
Instead of working on these critical problems, tonight this House is voting to fix something that's not broken - the Foreign Intelligence Surveillance Act (FISA). And we're doing this although we know that the other body will not take up this legislation before we recess.
I worked in the White House when FISA was passed. I understand its bipartisan history and the abuses it corrected.
FISA has been modernized 51 times since then. It is now a modern, flexible statute which includes 12 amendments since 9/11 made at the Administration's request. It is a vital tool for the FBI, the CIA, and the NSA in their investigations of terrorism and espionage.
All of us support strong tools to intercept the communications of terrorists, track their whereabouts, and disrupt their plots. All of us! But there is no evidence that FISA must be totally rewritten in favor of a new regime permitting broad warrantless surveillance of Americans. None. Yet the White House/Wilson bill does just that.
Mr. Conyers mentioned that a bipartisan group of former government officials issued a statement opposing the Wilson approach. They wrote: "This legislation would return a complex subject to the murky waters from which FISA emerged by making going to the FISA court, or applying FISA in any way, optional rather than mandatory. . . FISA provides . . . clarity and should not be abandoned or amended in ways that render it irrelevant." Judge William Sessions, who served as FBI Director under Presidents Reagan and Bush, and Judge William Webster, who also served Presidents Reagan and Bush as director of the FBI and the CIA signed that letter and they are right.
The White House/Wilson bill muddies the water in two major ways.
First, the bill rewrites the definition of "electronic surveillance" so it applies only when the government intentionally "targets" a person inside the U.S. This means that if an American citizen in Los Angeles talks to her sister in Mexico, NSA can listen to their phone calls without a warrant - simply by claiming that the "target" is the sister in Mexico. Nearly all international calls and emails of Americans can be intercepted - under this bill - without a warrant . using this new definition of "electronic surveillance."
The next loophole is even larger. The White House/Wilson bill authorizes the President to conduct warrantless eavesdropping on the communications of American citizens after an "armed attack," or a "terrorist attack," or in anticipation of an "imminent threat." This includes domestic-to-domestic phone calls and emails. But these terms are not defined. Talk about murky waters!
"Imminent threat" includes acts that are likely to cause "substantial economic damage." Is the threat of a trade war an "imminent threat?"
To allow 60 to 90 day renewable periods for the President to engage in warrantless surveillance is to gut the careful bipartisan protections in FISA and grant the President unchecked power.
As the Supreme Court has said, "A state of war is not a blank check for the President." Not for this President, or any future President.
Mr. Speaker, we can do better., and we will have time after this election to do better
The bipartisan substitute, which I support, is better, and would extend from 3 days to 7 days the amount of time that the NSA has to obtain a warrant in an emergency after surveillance begins, make clear that foreign-to-foreign communications do not require a warrant, even if they are intercepted in the United States, increase the number of FISA judges and put more resources into expediting the warrant application process, and reaffirm that FISA is the exclusive way to conduct electronic surveillance on Americans.
It includes key provisions of the LISTEN Act, which Mr. Conyers and I introduced in May, and has the support of all nine Minority members of the Intelligence Committee.
Protecting America from terrorism is our constitutional duty. We all know that it's an election season, and that a debate on surveillance brings political benefits to some. But that, my colleagues, is a terrible reason to legislate. I, for one, do not want to suspend our 217-year-old Constitution tonight for political reasons or for no reason at all.
Vote no.
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