Providing for Consideration of H.R. 5825, Electronic Surveillance Modernization Act

PROVIDING FOR CONSIDERATION OF H.R. 5825, ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (House of Representatives - September 28, 2006)

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Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding.

This afternoon, we had a lengthy debate in the Rules Committee on the base bill offered by my colleague from New Mexico and a substitute amendment that was offered by Mr. Flake of Arizona and by myself. It was a lengthy debate. I think it was a good debate. It would have been a better debate, however, if the conclusion had not been predetermined, if, in fact, it was a real debate in the sense that the outcome had not been decided before we entered the room.

The gentleman asked how long did it take for the committee to decide not to allow the bipartisan alternative, and I can tell the gentleman, by the time it took me to walk from the Rules Committee across the street to my office, the committee had decided it would not allow a bipartisan alternative. But I suppose that was my own fault for walking too fast. Perhaps if I had walked slower across the street, I might have gotten to my office before the committee ruled.

So I am going to tell you today about the bill we will not have the opportunity to vote on, not in an up-or-down fashion, and I think I will tell you a little bit about why we will not have the opportunity to vote on this bipartisan bill.

The ``why'' I think is relatively straightforward. Because the majority does not have the confidence that it has the votes to allow the substitute to come before this House. Because the substitute, which was the product of about 6 months of work between Mr. Flake and myself and in its other forum, legislative forum, has the support of seven Republicans and seven Democrats, as bipartisan as you can make it in this House, very well might command the majority of this House. That runs afoul of the rule of the Speaker that unless it enjoys a majority of the majority you do not get a vote in this House of Representatives. So we will not have a vote on the bipartisan alternative.

But let me tell you and the rest of the country what we are being denied the chance to vote on in the substitute. The Schiff-Flake substitute would do the following:

It would extend the warrantless electronic surveillance authority from the current 72 hours after the fact to 7 days, because the Justice Department and the NSA said that they needed more time after a wiretap is initiated to go to court and get an authorization. It is important for people to recognize that under current law you do not need to get a warrant before you go up on a wiretap. Under FISA, you have 72 hours. The government said that is not enough, we want 7 days; and in our substitute, we give them 7 days.

We enhance the surveillance authority after an attack. The Justice Department and the NSA say, well, under current law, we have 15 days to do warrantless surveillance after the declaration of war. Well, we do not even declare war, and so our substitute provides that when we authorize the use of force and we make it explicit that we will permit warrantless surveillance for 15 days. That authorization to use force grants that surveillance authority after an attack.

We also address the main issue that was raised by the NSA in the public hearings, the main problem the NSA advocated needed to be addressed, and that is that when one foreigner is talking with another foreigner on foreign soil, but because of the changes in telecommunications since the passage of FISA more than a quarter century ago, and that communication touches down somewhere in the United States or is intercepted in the United States, FISA shouldn't be involved. You should not have to go to court when you want to intercept a communication between one foreigner and another foreigner on foreign soil. And so we fixed that problem.

Our substitute permits continued surveillance when targets travel internationally. That was another request made by Justice and NSA. We streamline the FISA application process and remove redundant requirements in the application process. We increase the speed and the agility of the FISA process. We authorize additional resources to hire more personnel to make the applications.

But we also do something very important, which the base bill doesn't do, and that is we reiterate the fact that when you are going to surveil an American on American soil, and that is after all the heart of this matter, when you are going to surveil an American on American soil, the court should be involved, if not before you go and surveil, then within 7 days, that FISA sets up the exclusive authority for that.

Now, my colleague from New Mexico says the constitutional standard is reasonable in this, and that is right. Americans under the fourth amendment have the right to be secure from unreasonable searches and seizures. We have the right to be protected in our reasonable expectation of privacy. So I ask you, What is your reasonable expectation of privacy, Americans? Is it that if you are not engaged in terrorism, if you are not in contact with terrorists, if you are not engaged in harmful activity that you should be secure in knowing that your phone conversations will not be tapped without someone going to court to prove the facts?

But Members of this body will not have a chance to vote on this bipartisan substitute because the majority doesn't have the confidence they can defeat it. And for that reason, I urge a ``no'' vote on this rule.

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