Providing for Consideration of H.R. Extension of Authorities of Title VII of the Foreign Intelligence Surveillance Act of 1978

Floor Speech

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Mr. RASKIN. Mr. Speaker, please forgive me because I didn't even have 15 minutes to read it. I had to drive down from Maryland's beautiful Eighth District, so I have had about 90 seconds to review this product that we were supposed to have been working on for the last several months.

Let me do my best to try to analyze for people what is happening because already the machinery of propaganda and disinformation has set in, and people are talking about a magic warrant requirement which has appeared in here, which is complete and utter nonsense.

Let me start by echoing the distinguished ranking member of the Rules Committee that this is an appalling Kafkaesque process leading to an absurd Orwellian result. This is much worse than what was being offered before of the clean 2-year reauthorization. The substance of this proposal is utterly appalling.

They say you shouldn't look to see how the sausage gets made. This isn't even sausage. This is scrapple. It is scrapple with dogfood mixed inside of it.

Mr. Speaker, I am going to have to try to read through it to understand what they are doing.

Let's start with this: Originally, they proposed an 18-month clean reauthorization, and the Democrats and some members of the Freedom Caucus were very skeptical of the enterprise. They said: 18 months? That is not like any short-term extension we know around here. Usually, we talk about 72 hours or 1 week or 2 weeks. Eighteen months? That is a huge, massive expansion.

Then they went into some kind of compromise session with the White House. None of us were invited, so we don't know who was there or what was spoken, but they went from 18 months to 5 years. They went from a clean 2-year reauthorization to a 5-year dirty deal. The saving grace of it is supposed to be a so-called warrant requirement--which I will investigate in a second--which doesn't kick in for another 2 years.

We have 2 years without their illusory Band-Aid that they are putting on this process, this fake warrant requirement, so the Trump administration can do whatever they want even without this mythical, inscrutable warrant requirement, and then we get 5 more years of this.

This is the compromise that they worked out behind our backs, and all we could rely on was the goodwill of the handful of members of the Freedom Caucus who were standing up for the Constitution and the civil liberties and civil rights of the people.

I don't think that our friends in the Freedom Caucus have done the American people any favors if they are signing off on this.

The first thing that they do is they change the terms of the length of the legislation, a 5-year authorization with the fraudulent warrant requirement not kicking in for 2 years.

Let's look at the much-vaunted warrant requirement, which appears on page 3. Let's start with this in trying to understand the gobbledygook here. ``The Federal Bureau of Investigation may not ingest unminimized information acquired under this section into its analytic repositories unless the targeted person is relevant to an existing, open, predicated full national security investigation by the Federal Bureau of Investigation. If the subject of such predicated, full national security investigation is a United States person, for purposes of this paragraph, the investigation must be supported by probable cause.''

This is supposed to be the big concession to the people who were saying that the Constitution governs and the Fourth Amendment is still alive, right?

Well, what is the first thing that I notice as someone who spent 25 years as a constitutional law professor? Well, the operative part of it is the last eight words there: ``the investigation must be supported by probable cause.''

It doesn't say it has to be supported by a search warrant, much less does it say it has to be supported by a search warrant or probable cause determined by a judge, by a court. That is not in there.

Who is going to figure out whether it is supported by probable cause? We are not talking about evidence of a crime. We are talking about a predicated, national security investigation. If you flip the page, you find out that the Attorney General and the Director of National Intelligence shall jointly establish procedures and standards for officers and employees of the United States Government to determine the existence of probable cause. Well, there goes the requirement, the constitutional requirement of an independent magistrate issuing a warrant. The FBI will be the judge of its own warrant. In other words, we are right back to the problem that got us here in the first place. Mr. Speaker, look above there. We are told, ``Pursuant to subsection (b), no officer or employee of the United States Government may intentionally target for acquisition the communications of a United States person pursuant to an authorization issued under subsection (a). Pursuant to other provisions of this Act and the Federal Rules of Criminal Procedure, the Government may seek a warrant or other appropriate order supported by a probable cause showing to target for collection the communications of a United States person if there exists probable cause that the United States person . . . is a foreign power,'' et cetera, et cetera. May.

Suddenly, we go from the Constitution's imposition of a mandatory requirement for a warrant, right, that no warrants shall issue but upon probable cause and there must be a warrant for a search unless there is a specific exception to it. But this simply says they may seek a warrant. They don't have to. They may seek a warrant.

In other words, this provision, too, is meaningless. It just returns us to exactly where we were.

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Mr. RASKIN. It takes us right back to the status quo.

It says that the Attorney General, that would be Todd Blanche, or the Acting Attorney General, and the Director of DNI, shall establish the procedures for determining if there is probable cause. I thought that James Madison and George Mason had taken care of that. I thought the Constitution established the meaning of probable cause.

Now, it is being delegated to the Acting Attorney General. It doesn't even say the acting but whoever the Attorney General might be. Perhaps acting is imported through this language. Who knows?

Do we really want Pam Bondi or Kash Patel or Todd Blanche figuring out what our Fourth Amendment rights are and then they get to decide for themselves without going to a court? At the very least, even if we are not going to have an actual warrant, there must be an independent judge, a magistrate, involved in defining whether or not there is probable cause to search American citizens. That is the bottom line here.

Everybody knows and understands our Constitution and, yes, our Constitution applies in peacetime. It applies in wartime. It applies to American citizens in America. It applies to American citizens abroad.

Mr. Speaker, we are very willing to sit down to try to figure out some way we can deal with this thorny area of the law, but sneaky meetings at the White House behind everybody's back and then votes at 2:30 in the morning are not going to do it for the Constitution and the Bill of Rights of the American people.

Mr. AUSTIN SCOTT of Georgia.

Mr. Speaker, I know Mr. Raskin is a very good courtroom lawyer, and I mean that. If I needed a defense lawyer, the gentleman would be one of the first I would hire. I don't need a defense lawyer, thankfully.

I do want to point out a couple of things that did not get mentioned. It is on page 5: ``Any information concerning a United States person acquired under section 702 may not be used in evidence against that United States person pursuant to paragraph (1) in any criminal proceeding if such information was acquired in violation of subsection (o) of such section.''

Now, when you go to subsection (o), warrant requirement for certain targeting--

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Mr. RASKIN. Mr. Speaker, I thank the distinguished gentleman from Georgia for his points, but I hope that their entire case doesn't rest on the argument that he just advanced from page 5. He quoted the section saying that any information concerning a United States person acquired under 702 may not be used in evidence against that person in any criminal proceeding if such information was acquired in violation of subsection (o).

If you go to subsection (o), it says: ``Pursuant to subsection (b), no officer or employee of the United States Government may intentionally target for acquisition the communications of a United States person. . . . ''

That is precisely the law today. This is a restatement of what is already the law.

FISA is called the Foreign Intelligence Surveillance Act. It is all about the surveillance of people abroad. It is not about surveilling the people here.

If somebody were deliberately targeted, every judge in the land, even those most faithfully reporting to Donald Trump, would say: I am sorry. You can't target U.S. citizens on that under FISA.

This is all about the collection of incidental data. I thought that everybody understood that that was the premise of our whole legislative discussion here, that this is about the collection of incidental data affecting hundreds of thousands of American citizens. That is what we are talking about.

The passage that the gentleman just read is a restatement of what the law is today, which is that if they set out to go after American citizens here, of course, the exclusionary rule operates at that point. It would be prohibited. The question is, what happens if they incidentally collected. Under this new language, nothing happens unless somebody permissively decides that they want to adopt a rule over at the Department of Justice making it a problem.

Mr. AUSTIN SCOTT of Georgia.

Mr. Speaker, 702 is the intelligence tool that has been reauthorized in a bipartisan manner under both Democratic and Republican administrations. It is an intelligence tool that my colleagues on both sides of the aisle know must be reauthorized to protect the citizens of the United States of America.

This bill coming before us today has additional protections over and above the 56 protections that we adopted, again, in a bipartisan manner, in the RISAA legislation just a few years ago.

Mr. Speaker, I look forward to the passage of this rule. I look forward to the passage of the legislation. People on our side have worked in good faith to make sure that we do anything and everything that we can to protect the United States citizens without violating their constitutional rights. That is why the additional provisions have been added in here.

Mr. Speaker, again, I will go back to this provision that I read to you, where if any information is obtained against a United States person, none of that information can be used to prosecute a United States person unless a warrant has been obtained first.

Mr. Speaker, 702 is not a law enforcement tool. It is an intelligence tool. It is an intelligence tool that has been properly designed to protect the United States and its citizens from people who want to destroy us.

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