Date: 2012-09-12
Speaker: JACKSON LEE (democrat)
Chamber: H
State: Texas

In the course of this particular legislation. we had to contend with such things as warrantless wiretapping. Again. as I indicated. the need for the intruding of the Congress is a respect of the liberties which we want to protect. So I would ask my colleagues to yield to transparency. to yield to a shorter extension. Make this bill stand on its own two feet juxtaposed to the Constitution. While we mourn those who have fallen. we respect that this is a free country. Today. we are not acting on that freedom by giving up the congressional oversight that is necessary. I ask my colleagues to reject the present form of this bill. I beg the Senate to look more readily at a shorter extension and more transparency. I rise in opposition to the FISA Amendments Act of 2008. I believe that although we had a chance to discuss this reauthorization in the Judiciary Committee. the full import of this bill is too broad and more debate and consideration is necessary. The fact is not lost on me that this is the 11th year following the attacks of 911. I open my statement with a quote from one of my heroines. and a trailblazer on so many levels. Barbara Jordan. who said: "What the people want is very simplethey want an America as good as its promise." Over the past year. Senate and House Democrats have worked with their Republican counterparts. the Administration. the intelligence community. and privacy advocates to develop proposals for amendments to FISA that would give the intelligence community the flexibility it needs to safeguard our nation. while also providing strong protections for civil liberties. A proper balancing is Americaas good as its promise. And inkeeping with the notion of balance. I offered an amendment during the Judiciary Committee Markup of this legislation which simply asked for a report on the implementation of the amendments made by the FISA Amendments Act of 2008. My amendment simply requested that the report include an assessment of the impact of Section 702 of the FISA on the privacy of persons inside the United States. Even with courtapproved targeting and minimization procedures in place. the government can and does intercept the communications of U.S. citizens. It does so without a particularized warrant or a showing of probable cause. This approach to electronic surveillance raises concerns under the Fourth Amendment. which prohibits unreasonable searches. warrantless eavesdropping. and the use of "general warrants." The Fourth Amendment to the U.S. Constitution provides a right "of the people to be secure in their persons. houses. papers. and effects. against unreasonable searches and seizures." Many of the government activities discussed in this report have the potential to constitute a search as that term is defined in Fourth Amendment jurisprudence. Namely. government action constitutes a search when it intrudes upon a persons "reasonable expectation of privacy." which requires both that an "individual manifested a subjective expectation of privacy in the searched object" and that "society is willing to recognize that expectation as reasonable." The Fourth Amendment and its protections go back to our foundingthe ability of the American Patriots to resist unwarranted searches and seizures by the British is inculcated in the American psyche. Thus. the Fourth Amendment ultimately limits the governments ability to conduct a range of activities. such as physical searches of homes or offices and listening to phone conversations. As a general rule. the Fourth Amendment requires the government to demonstrate "probable cause" and obtain a warrant (unless a recognized warrant exception applies) before conducting a search. This rule applies most clearly in criminal investigations. For example. an officer conducting a criminal investigation typically may not search a persons belongings without first obtaining a warrant that describes the property for which sufficient evidence justifies a search. The extent to which the Fourth Amendment warrant requirement applies to the governments collection of information for intelligence gathering and other purposes unrelated to criminal investigations is unclear. Although the surveillance of wire or oral communications for criminal law enforcement purposes was held to be subject to the warrant requirement of the Fourth Amendment in 1967. neither the Supreme Court nor Congress sought to regulate the use of such surveillance for national security purposes at that time. Several years later. the Supreme Court invalidated warrantless electronic surveillance of domestic organizations for national security purposes. but indicated that its conclusion might differ if the electronic surveillance targeted foreign powers or their agents. A lower court has since upheld the statutory scheme governing the gathering of foreign intelligence information against a Fourth Amendment challenge. despite an assumption that orders issued pursuant to the statute might not constitute "warrants" for Fourth Amendment purposes. The Supreme Court has not yet directly addressed the issue. However. even if the warrant requirement was found not to apply to searches for foreign intelligence or national security purposes. such searches would presumably be subject to the general Fourth Amendment "reasonableness" test. In the context of national security. the contours of the Fourth Amendment are necessarily narrowed but not abandoned altogether. The march toward a Big Brother State begins when the peoples rights to privacy and to be free from surveillance are surrendered in toto. All we have to do is look at the recent Jones decision which concerned a purely domestic case in which law enforcement took advantage of hightech tools to follow a suspected drug dealer. A conservative Roberts Court voted 90 to invalidate this search. It is rare for liberal Democrats and conservative Republicans to agree on much of anything these days. but I am sure that many of my colleagues on the other side would find untargeted procedures under FISA unlawful and thereby unconstitutional. Homeland security is not a Democratic or a Republican issue. it is not a House or Senate issue. it is an issue for all Americansall of us need to be secure in our homes. secure in our thoughts. and secure in our communications. It is widely known that the Obama Administration would like a clean. five year reauthorization of the FISA Amendments Act. consistent with the approach taken by the Senate Select Committee on Intelligence this spring. I would also note that there were two voices of dissent in the Senate committees proceedings. Senators WYDEN and UDALL who have been champions of national security. privacy. and civil libertieswhich are not mutually exclusive.