Electronic Surveillance Modernization Act

ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (House of Representatives - September 28, 2006)

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Mr. SCHIFF. I thank the gentleman for yielding.

My colleague from California is right, we do have reasonable differences of opinion on this legislation. Regrettably, we won't get a chance to vote on them. The bipartisan substitute that I offered with Mr. Flake will not be permitted to come up for a vote tonight.

Let us look at where we are. It is 5 years since 9/11. And in those 5 years, the Justice Department, the NSA have not come to Congress to ask for the changes that are being proposed by this bill. Indeed, but for the fortuity of the disclosure of the secret program by the New York Times, we wouldn't be here at all. That says something about the efficacy of the current law and the current FISA court.

Now, I happen to think the FISA laws can be improved. We have amended them, though, in 25 different ways over the last several years, so it is not as if this 28-year-old act has been untouched. The question here, the rub here is not what we do with foreigners who are talking to other foreigners on foreign soil, as my colleagues in the majority would like us to believe. The rub here is what do we do about Americans on American soil.

Do we want to entrust to the government and say you can surveil an American here at home without any court supervision? We are going to take entire programs off the books. We are going to embody a philosophy that says to the government, we trust you. We don't need a check and balance. My colleague says that the transportation analogy would be rules of the road. Well, the more accurate analogy would be if we had a speed limit sign and people were racing past it and violating the speed limit, the base bill would say, tear down the sign or do away with the court that would enforce the law by stripping the court of the jurisdiction to review the program.

That is not what we are here to do. We are here to say to the American people that those that wish us harm we will go after with every tool. But you, who are law-abiding citizens of this country, have a reasonable expectation of privacy in your homes and we will respect that. When we intrude your home and your phone and your e-mail, you will have the confidence of knowing that a court is overseeing what the government does.

Because the Framers' philosophy was check and balance. It served us well for 200 years. It will continue to serve us well.

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Mr. SCHIFF. Mr. Speaker, it is a regrettable fact that at the beginning of the 21st century there are a great many people in the world whose primary motive in life is to seek to harm or kill Americans. Our country faces a real threat, and it must be addressed.

As we fight this threat, Americans need to know two things. First, that we will use every tool we have necessary to stop the people that would hurt this country, that we will do everything possible to find them, to capture them, to kill them, if necessary. We will surveil them, we will listen to their calls and their e-mails, and we will do everything in our power to protect this country.

Second, Americans need to know that if you are a law-abiding citizen and you are not a terrorist or supporting terrorists that we will respect your privacy. We will not listen to your calls when we do not have a business to, and we will not read your e-mails when we have no business to.

Under the Schiff-Flake motion to recommit, we modernize FISA. We give the government the time, the flexibility it needs. We fix the problem of foreigners talking to foreigners in calls that go through the United States. In short, we do everything that the NSA and the Justice Department has asked us to do.

The base bill, by contrast, excludes whole categories of surveillance, including the surveillance of Americans on American soil from court review. The base bill can be summarized as follows: Trust us. We are from the government. We may listen to you, but trust us. We know what we are doing.

But our Constitution was drafted on a very different premise, a premise that said we operate from a system of checks and balances, that no one branch of government should be trusted implicitly, without review and oversight by another.

Today, we have a choice between two alternatives, both of which modernize FISA, one which gives a blank check sought by the administration, the other that protects Americans on American soil.

One of the leaders in this debate that I have been privileged to work with is my colleague from the great State of Arizona, and I yield to the gentleman from Arizona (Mr. Flake).

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