Date: 2008-05-19
Speaker: DANIEL E. LUNGREN (republican)
Chamber: H
State: Cali

fornia. Madam Speaker. well. here we are after nine months. today. May 19. and this body is yet to provide Admiral McConnell with the tools hes asked for in order to protect the American people from another cataclysmic attack against our Nation. When the Director of National Intelligence. Admiral McConnell. first came to Congress for help. he was only given a 180day authority to conduct surveillance. which he described at the time as necessary to close critical intelligence gaps. Of course. after a short 2week extension. that authority. which we called the Protect America Act. actually expired on February 16 at 12:01 a.m. So were in day 95. Three months and 5 days later. 13 weeks later. 22.080 hours later. 136.800 minutes after the FISA fix which we gave to the intelligence community of our Nation. that fix expired. Unfortunately. the socalled RESTORE Act. passed as a substitute by the majority party. repealed core provisions requested by Admiral McConnell. While the Senate passed a bipartisan 6year extension of a new FISA bill based on the Protect America Act. thus responding to the real world concerns of our Director of National Intelligence. unfortunately the Members of this- chamber were denied a clean upordown vote on it. The end result is that here we are. nine months from the time this process of fits and starts began. without an effective response to the most serious national security threat of our time. Madam Speaker. are we supposed to believe that al Qaeda has somehow lost its determination to kill innocent Americans? Well. as recently as Friday. Osama bin Laden was issuing threats against both the little Satan and the big Satan. I dont know about you. but I think we should want to remove all obstacles to listening in on his conversations. For there is no evidence. none whatsoever. that these homicidal extremists have any less desire to kill us and others perceived by their twisted psychotic logic to be legitimate targets. Yes. innocent men. women and children. No. the evidence is unequivocal and clear. Since 2001. attacks actual and premeditated have been a constant across the globe: attacks in Bali. Indonesia. in 2002 and 2005. a planned attack on Barcelona 2003. a deadly attack in Riyadh. Saudi Arabia. in 2003. a foiled plot in Istanbul. Turkey. in 2003. a deadly attack in Casablanca. Morocco. in 2003. a terrible attack in Madrid. Spain. in March 2004. attempted attacks in the Philippines 2004. a deadly London attack in July 2005. a plan to blow up airliners over the Atlantic in 2006. an attack in Algeria in 2006. an intended attack in Deniiiark in 2007. and a planned attack in Germany in 2007. Al Qaeda has also tried to overthrow the governments of Egypt in 2004. Jordan in 2005 and Saudi Arabia in 2007. For we no longer live in a world where wishful thinking is permissible. if we wish to fulfill our obligation to those who sent us here to represent them and to protect them and future Americans. this is the first obligation of government. and we no longer have the option of pretending otherwise. Although. pretending otherwise seems to be in the air these days. The President of the United States addressed a session of the Knesset in Israel. There. celebrating the 60th anniversary or birthday of the State of Israel. in the context of remarks made by the leader of Iran to wipe off the face of the earth Israel. in light of other comments made by others affiliated with terrorists that we should see the day soon where Israel will no longer exist. in the context of speaking to a country whose birth grew out of the terrible experiences of the Holocaust in Germany. the President of the United States referred to the failure to act at that time by America and other countries around the world. the failure to even admit that there was a serious problem of cataclysmic consequence. And when the President merely quoted a senator from that era who happened. by the way. to be a Republican. to suggest in the words of this senator of that time that if hed just had a chance tQ talk with Hitler perhqps the future of the world would have been different. when the President merely says that in the context of the celebration of the 60th anniversary of the State of Israel. at a time when there are those in this world crying for their destruction. and at a time when rockets are lobbed into Israel on almost a daily basis. the response by some in this country is to criticize the President for uttering those words. to suggest that he had no right to say that. and to suggest that somehow he was accusing others of appeasement. who he had not even named. Was the President suggesting that terrible circumstances in the world. adding up to a threat against us and those who ally wdth us. are dismissed by some as insubstantial or inconsequential? I think the President did suggest that. I think the President thought or stated that people who hold that view are dangerous to themselves and others because they are not confronting the evil that is in the world today. Li 1800 And sometimes that appears to be the problem we have here. Where is the sense of urgency about the threat that is around us? Sometimes. when we just talk about it. those that talk about it are accused of being fearmongers. trying to stir up the country. trying to take rights away when. in fact. they are merely reciting the facts in the world today. Our policy as a Nation must begin with the recognition ofreality. However inconvenient or discomforting it must be for some of us. we must recognize that meeting the challenge posed by those who seek to kill us is going to be not a shortterm challenge. but a longterm challenge. It will. therefore. require a longterm commitment to and a longterm investment in our security. And this must begin with the recognition by the leadership of this body that listening to the conversations of terrorists overseas is essential to our ability to. protect ourselves and those who live in neighborhoods and communities across this great Nation. As a member of the Homeland Security Committee. I can say that over the 4 years the committee has been in existence we have sought to work together. Democrat and Republican. to try to protect and secure our homeland from another horrific attack. And it is my view that. although we are considerably safer today than we were on 9/11. we are. nonetheless. not safe enough. We must never accept the mistaken notion that we can achieve security on the cheap. either in money. tactics or strategy. I fear. however. that we have lost that sense of urgency corresponding to the real risk to our Nation. A proper understanding of the risk requires a vigorous and rigorous assessment of our Vulnerability" the consequence of our enemy successfully penetrating that vulnerability. and the threats to our vulnerabilities. In other words. risk equals threat plus vulnerability plus consequences. And while all three components are important. and some would say all are equal. I would argue that one is more equal than the others. and that is threat. Why do I say that? I say that because we have it within our capacity of knowledge to know what our vulnerabilities are. We can assess a dam. We can assess this building. We can assess the White House. We can assess our distribution systems of electricity and see where the vulnerabilities are. We can run computer models. We can even run simulated attacks and discover what those vulnerabilities are. Similarly. we have it within our capacity to know the consequences. We can figure out what the consequence of destruction of this building would be. what the destruction of a particular dam would be. what the destruction of a distribution system for power would be in a particular area of this country. But what we dont have in our own arsenal of knowledge is an understanding of. the threat. because the threat. in large measure. resides in the minds of those who would attack us and. therefore. we have to try and get into their minds. That is why I would suggest that the threat component of a risk assessment is perhaps more equal than the others. It remains my belief that the threat of another attack is real. not imaginary. You do not have to take my word for it or anybody on this side of the aisle or the President of the United States. for the murderous extremists themselves have not been shy concerning their purposes and objectives. AlZawahiri has said. "Like their glorious ancestors. the Afghan jihadists believed that they. too. had brought down one global superpower. and now these modernday knights must recommit their efforts to wreaking havoc on the remaining one. the United States." In October 2001. just one month after September 11. bin Laden said. and I quote him directly. "If inciting people to do that"-hes referring to 9/l1-"is terrorism. and if killing those who are killing our sons is terrorism. then let history be witness that we are terrorists. We practice the good terrorism." The next year. Osama bin Laden issued a fatwa authorizing the killing of up to four million Americans and specifying that half of them should be children. Those are not my words. those are not my threats. those are the threats of Osama bin Laden. I believe the threat to be real. And the consequences oLal Qaeda obtaining weapons of mass destruction regrettably cannot be put in the category of unthinkable because of the evidence of their efforts to do so. thankfully unsuccessful to this point. My point. however. is that we cannot rely solely on our domestic efforts to secure the homeland. as important as they are. and thereby hope that we will reach a level of perfection in that we are capable of foiling every single terrorist plot in order to prevent a cataclysmic attack on our Nation. No. The consequences are simply too horrendous to not use every tool available to US. The ability to capture the communications of terrorists overseas* before they are able to strike is a key component of being able to extend our defensive perimeter beyond the shores of our homeland. As Brian Jenkins of the Rand Corporation has pointed out. in the terror attacks since 9/11 we have seen combinations of local conspiracies inspired by. assisted by and guided by al Qaedas central leadership. It is essential that while protecting the basic rights of American citizens. we find ways to facilitate the collection and exchange of intelligence across national and bureaucratic borders. Again. as this Rand Corporation scholar points out. if we are to be successful in the protection of American citizens. the collection of intelligence must be a central .component of our strategy. Our concern here is not to spy on Americans. but. rather. to listen to the conversations of those who want to kill Americans. and to be even more specific. to listen in on those conversations of those who are outside the United States and who happen to be plotting to kill Americans. Now. some have said. what if such calls happen to be made by. say. Osama bin Laden or one of his lieutenants or some associate to someone inside the United States. doesnt this raise civil liberties and privacy concerns because of the fact that an American happens to be on the receiving end of the call? Again. the objective of our efforts remains to target a foreign terrorist. From a technical standpoint. one should understand that it is only possible to target one end of the conversation. Furthermore. our intelligence agencies have no control over who that overseas terrorist suspect may call. 99.9 percent of the time it may be. and we believe it to be. another foreign person. most likely someone that they are talking about their terrorist activities with. Admiral McConnell made this very point in responding to questioning during our Judiciary Committee hearing. the admiral responded this way: "When youre conducting surveillance in the context of electronic surveillance. you can only target one end of the conversation. So you have no control over who that number might call or who they might receive a call from." Furthermore. if Osama bin Laden happens to dial the wrong number and gets a pizza delivery boy or girl in San Diego. there are minimization procedures in the law. in the Protect America Act. in the current circumstances in which they operate these programs. minimization procedures to protect the privacy rights of the innocent American on the other end of the line. It is similar to the minimization processes that we use every sing4e day when law enforcement in the United States. acting on a legal wiretap against a suspected criminal. overhears the conversation involving someone on that criminals phone and somebody else. And if that person is an innocent actor in all of this. that part of the conversation is minimized. If. in fact. it turns out that the specific legal target we have is calling someone who also is involved in the illegal activity. then the process or procedure. as followed for yearsI think as many as 50 yearsis to go to court and get a warrant with respect to that other person. That is precisely the format that we use under the Protect America Act. The purpose of the surveillance of foreign terrorists overseas is nothing more or nothing less than to do this single thing: to listen to the foreign terrorist overseas. I hasten to add. however. that if Osama- bin Laden or one of his lieutenants happens to call somebody in the United States. it probably doesnt take a rocket scientist to surmise that this is probably a conversation that our intelligence community might be interested in. Nevertheless. they would have to follow the procedures Ive just outlined ]because the target of the surveillance would be Osama bin Laden outside of the United States. The conversation he has with someone in the United States. if that were to take place. would be subject to minimization. I would hope that this surely would be an issue we could agree upon. However. here we are. 9 months after Admiral McConnell came to the Congress with the entreaty that we need to "close critical intelligence gaps." 95 days after the shortterm fix has gone out of existencethats 3 months and 5 days agoand here we are basically accepting a failure to close critical intelligence gaps as requested by Admiral McConnell. We were told that we were failing to surveil somewhere between onehalf and twothirds of tle overseas conversations that we should be listening to. What do we mean by that? We mean the same type of terrorist targets that weve been keying on for years because we didnt have this problem prior to a year ago March. when a FISA judgethats the Foreign Intelligence Surveillance Act court judgesaid that because the technology had changed from the time the law was originally passed in 1978. from most overseas. longdistance conversations or overseas conversations going through the air. going through satellite transmission and thereby capable of being captured by our intelligence community and therefore not under the FISA law. to the point now where technology actually has most of that. the vast majority of those kinds of conversations being carried by wire with connections that happen to be somewhere in the United States. So while the content of the conversation hasnt changed. the means by which the transmission of the conversation has changed. and that technicality was used by the judge to say you now have to get a warrant and go through all of those procedures necessary to protect the interests of someone in the United States under the Constitution. Now they have to be applied to these foreign conversations. not because the conversation has changed. not because the target has changed. rather. because the technology of transmission had changed. Oh. by the way. the judge suggested. we are told. that it didnt appear to be the intent of Congress when they wrote the law in 1978. and he suggested that the intelligence community go to the Congress for the change. So here we are. We have failed to provide the Director of National Intelligence with the tools that he told us he needs if he is able to do his job and able to protect the American people. the job he is sworn to do. In my estimation. this is surely one of the great failures of this or any other Congress. to live up to what is generally recognized to be our primary responsibility. to protect those who have empowered us to act on their behalf. And let me add at this point that such a failure appears to be entirely inexcusable in a postSeptember 11 environment. It is for that reason most troubling to learn that U.S. Attorney General Michael Mukasey and Admiral McConnell. Director of National Intelligence. have indicated that we have lost intelligence information as a direct result of "the uncertainty created by Congress fail to act." So let me repeat. both the top law enforcement official in the Federal Government and the most senior intelligence officer in oul Federal Government have told us that there have been direct consequences resulting from the fact that this body has dropped the ball since February 15th of this year. It should be interjected that neither of these men have a history of partisan political agendas. Attorney General Mukasey has a solid reputation as a soberminded former Federal judge with great expertise in national security law. Judge Mukasey presided over the criminal production of Omar Abdel Rahman and El Sayyid Nosair relating to their plot to blow up the United Nations and other Manhattan landmarks uncovered in an investigation of the 1993 World Trade Center bombing. As a testimony to his stature as a jurist. his name was one of four submitted by the senior Senator from New York for consideration as a possible United States Supreme Court nominee. In a similar vein. Admiral McConnell has a solid reputation of service to his country in both Democratic and Republican administrations. Along with a distinguished military career. his service as Chief of the National Security Agency for I believe 6 years during the Clinton administration is a testimony to his nonpartisan service. One noteworthy incident alone provides us with persuasive evidence of Admiral McConnells independent judgement. Now. regardless of how one interprets the most recent National Intelligence Estimate concerning Iran. the one that was so controversial. any attempt to attack Admiral McConnell as a "tool" of the Bush administration would appear to lack all credibility. There should be no doubt in anyones mind that Admiral McConnell is a man of honor who calls it as he sees it. Both officials have told the Congress what the country needs. and yet the majority of this body has told them no. Both officials have told the Congress that the country needs help. and yet the majority in this body has told them no. told them no. that they know better. Now.. although institutional pride makes it painful for me to say it. the truth requires an acknowledgement that the other body did rise to the challenge of avoiding partisanship. E 1815 They did it with a bipartisan bill. which. although distinct in some aspects from the administration proposal. nevertheless was responsive to the request by Admiral McConnell. And this is as it should be. For the responsibility to give the intelligence community what it says it needs for its surveillance of foreign terrorists outside the United States has absolutely nothing to do with partisan politics. Our intelligence needs out there in the real world are critical to what theorists refer to as a zerosum game. Our failure to obtain the intelligence we need to discover a terrorist attack planned outside the United States is a loss for all Americans. Those killed on 9/11 werent Republicans or Democrats. they were- human beings. Most were Americans but many were not. We owe it to those who perished. to those who live today. and to further generations not to allow transient political considerations to cloud our judgment. The Senate has shown that its possible. even in evennumbered years. to do whats right. So how is it. then. that men and women in this body. who I know personally to be persons of goodwill. have resisted the call to bipartisanship by public servants like Attorney General Mukasey and Admiral McConnell? How is it that. unlike the Senate. we have been unable to. in my judgment. rise above partisanship? Let me make it clear that I have the deepest respect for my colleagues on the other side of the aisle who obviously love their country. as I do. and their patriotism is not an issue in this debate. So I searched to try to figure out what is it? And I have come to the conclusion that at its root. this terrible error can be found in the misgotten judgment of the Democratic leadership of this body to draw a line in the sand over an issue of providing lawsuit immunity protection for those telecommunications companies and individuals who may have come to the aid of their country in the aftermath of the horrific attacks on 9/11. The socalled Restore Act. which passed this body. did nothing. does nothing. to protect those who responded to the call for help from their government. Instead. the response of the leadership of this body was to throw those people into a litigation tank filled with plaintiffs lawyers. The grant of a waiver of the State secrets doctrine resembles anything but a lifeline. The companies remain in the tank left to fend for themselves. As one of the Members of the other side said in hearings that we had in the Judiciary Committee. well. these companies have millions of dollars worth of lawyers. as if thats the proper answer. This sends the worst possible message to all Americans. After all this who would be dumb enough to respond to the entreaties of their government in a time of crisis? Would corporate counsel or board of directors anywhere in the land conclude otherwise? Attorney General Mukasey and Director of National Intelligence McConnell frame the issue clearly in a letter to the Senate supporting the language in that bipartisan Senate bill: Without retroactive immunity the private sector might be unwilling to cooperate with lawful government requests in the future without unnecessary court involvement and protracted litigation. The House leadership response. unfortunately. turns the notion of the "Good Samaritan" upside down and hits the delete button erasing the ethic of a bygone era when school children.. including myself. were taught to type these words: "Now is the time for all good men -today we would add "women"-"to come to the aid of their country." Now you cant say that. In the absence of action here in the House. conforming to what the Senate has done already on a bipartisan basis. you have to turn that around and say. "Now is the time for all good men and women to come to the aid of their country only when they have their lawyers and accountants with them." According to statements by the distinguished junior Senator from West Virginia during debate in the Senate. and he is. I believe. the chairman of the Senate Intelligence Committee. these companies acted in response to letters. all of which stated the relevant activities had been authorized by the President. All but one. and that was done by legal counsel to the President. stated the activities had been determined to be lawful by the Attorney General of the United States. Now. that is the set of facts presented in the Senate. I believe to suggest that these companies should not be able to rely on such representations from the highest levels of our government is beyond -comprehension. Yet instead of receiving gratitude. these modern "Good Samaritans" appear to be captive to a larger dynamic. a political dynamic involving the leadership of this body and the "MoveOn.org" left. which can countenance nothing which involves Bush either directly or indirectly. As a result. these companies and individuals have been caught in a political crossfire ilot of their own making. People say. well. we disagree with what the present administration did. We suspect they did things that were not within the authority of the President. Now. I would strongly disagree with that. but thats the position that some take. So rather than aim at the administration through whatever processes we have under the Constitution. they aim at these threeparty "Good Samaritans." as if they can by litigation bring them into the judicial doc and cause them enough pain that somehow they will stop doing what theyre doing and in the process reveal something that the administration did. And yet there is no one who I believe has looked at the documents whos made a credible claim that the administration did anything without an express statement of authority. However. even if you dont care about the question of fairness. theres another overriding consideration relating to the protection of the American public. Again. as the Attorney General and Director McConnell point out: "Extending liability protection to such companies is imperative. Failure to do so could limit future cooperation by such companies and put critical intelligence operations at risk. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our Nation." In short. what they are saying is if the absence of retroactive liability protections leads to private partners not cooperating with foreign intelligence activities. we can expect more intelligence gaps. Now. here I might even quibble about whether were talking about presenting retroactive liability protection. Some believe that these companies already have that liability protection but that because of the strange way in which the laws of intelligence and the courts of intelligence work. they are not able to even present those. and so we ought to clear this up. So lets stop for a moment to contemplate what weve been told by these public officials. If we fail to provide liability protection in a way that they can use it for these companies who relied on assurances from the highest levels of government. the result may very well be an absence of such cooperation in the future and more intelligence gaps. As a matter of fact. it goes beyond this. A number of attorneys general of the United States signed a letter expressing their concern about what this would do to the common law oftentimes framed in statute protections given to those people. average everyday citizens or companies. who respond to a request from local and State government to assist when local or State government officials think a crime is about to occur or is occurring or in a state of emergency. These State attorneys general feared that the action of the Congress not recognizing this immunity theory. which although embedded in statute goes back. I believe. at least 700 years into Anglo law. that a disrupting of this concept of cooperation by a citizen of the United States at the request of legitimate lawful authority. that that could stop in the efforts to stop crime and also investigate crimes at the Stateand local level. So as a matter of public policy. this is simply unacceptable. We have been warned that the failure to step up to the plate on the issue of immunity will mean less intelligence on al Qaeda and .greater difficulty in "connecting the dots." Maybe such a warning could have been ignored in a pre9/11 environment with our naive feelings of invulnerability. However. we no longer live in an age of innocence. We know better. We know that we no longer have the ability to delude ourselves into thinking that everything will be okay. Today we live in a world where we must operate from the" premise of a very different assumption. There are radical extremists overseas who want to come here with the express purpose of killing us. They have a mensrea of murder on their minds. That is the purpose for which they live. and in their twisted minds. it is only through the achievement of such an objective that they will realize their own expiation. This is their mindset. This is what drives them. This isnt what I am saying. this is what they say. As Hasann Butt. a former jihadist. has explained. "I was a -fanatic . .. I know their thinkiug... When I was still a member of what is probably best termed the British Jihadi Network . . . I remember how we used to laugh in celebration whenever people on TV proclaimed that the sole cause for Islamic acts of terror like 9/11. the Madrid bombing. and 7/7 was Western foreign policy." Yet "by blaming the government for our actions. those who pushed this Blairs bombshes speaking of it in the context of British terrorism"those who pushed this Blairs bombs line did our propaganda work for us.. More important. they helped draw away any critical examination of the real engine of our violence." which Butt goes on to describe concerning the attempted hijacking of Islamic theology. Madam Speaker. with this in mind. we must not allow the broader debate concerning the United States foreign policy or the war in Iraq to obscure the need for a concerted and unified commitment to defend and protect the American people. This is where our focus ought to be. Not on a food fight over whether something six degrees removed from President George Bush might somehow imply support for him. When it comes to protecting the American people. theres no room for partisan or ideological wrangling. With respect to our Nations need to collect foreign intelligence on foreign terrorists. the maxim that "partisanship must stop at the waters edge" should be our guide. The time has come to say "enough already." Democrats and Republicans have come together in the other body to act in a responsible manner in meeting the needs expressed by the intelligence community relating to foreign surveillance. Theres a clear majority within this body that would support the bill enacted in the Senate if they were given the opportunity to have an upordown vote on it. We know that from statements that have been made. We know that from the strong vote on this side of the aisle and the more than 20 Members on the other side of the aisle who signed a letter to the Speaker stating that they would support the Senate bill. It has been my hope that at some time. the leadership of this body would perceive that they had extracted a sufficient level of political currency with the "Move On" faction of their base to. in fact. move on and finally allow a vote on the bipartisan Senate bill. Even though it might not reflect everything I would have crafted in another possible world where my party was in the majority. it nonetheless reflects a sufficient response to the entreaties of Admiral McConnell concerning what is necessary to protect the American people. However. it does not appear at this point that my hope that the House leadership would find its way has in fact turned out to be the case. Therefore. it is apparent that the remedy afforded by this. the peoples House. to overcome obstructionism by those who would thwart the will of the majority of its Members. must be used. The mechanism of the discharge petition to release the bipartisan Senatepassed bill from procedural captivity. unfortunately. must be utilized at this time. This is clearly where a matter of paramount concern to our Nation requires such action and calls us to rise above partisanship. . There is no issue of greater importance to the functioning of government than the need to protect the American people from threats which originate outside of our borders. That is what is involved here: Intelligence collection relating to foreign terrorists outside of the United States. The willingness of this leadership in this body to allow our Nation to lose intelligence is inexcusable. In essence. we have hit the mute button. This failure has been acknowledged by both the Attorney General and the Director of National Intelligence. It is time for us to remove the obstructions which have been placed in the way of foreign intelligence collection in this great institution of the House of Representatives. in which we are all privileged to serve. is honored when the people themselves are served. We must meet our responsibilities as elected Members of this body to ensure that the safety of the American people is secure. Madam Speaker. there is no excuse for a day to go by that we do not act on this important matter. Unfortunately. 95 days have gone by. Let us act sooner rather than later. and let us act in a spirit of bipartisanship. taking a lead from the other body. even though we dont always like to do that. but taking a lead from the other body. that set aside partisan differences. did not give the administration everything they wanted. but came up with a bill that Admiral McConnell has assured us will work. Attorney General Mukasey has said will work. and that on the Senate side they were satisfied protects the civil liberties of the American people as we seek to listen in on those communications or capture those communications of those who would wish not to join us as Americans but to kill us as Americans. Madam Speaker. I cannot think of anything that is more important. The sense of urgency must be here. We should act now. We should wait no longer. With that. I yield back the balance of my time.