[Congressional Record: June 26, 2008 (Extensions)]
[Page E1378]                      

                      FISA AMENDMENTS ACT OF 2008


                               speech of

                          HON. PETER HOEKSTRA

                              of michigan

                    in the house of representatives

                         Friday, June 20, 2008

  Mr. HOEKSTRA. Madam Speaker, I would also like to clarify a number of 
aspects of this legislation on behalf of myself and the distinguished 
Ranking Member of the Judiciary Committee, Mr. Smith.
  We have faced substantial challenges in reconciling fundamentally 
different philosophies on how to modernize the Foreign Intelligence 
Surveillance Act (FISA). The text of H.R. 6304 was carefully, 
deliberately crafted on a bipartisan basis to reconcile these 
differences. Other statements by media reports, or the reports or work 
product of any of outside groups reflect their own views and should not 
be construed as determinative guidance with respect to legislative 
intent. While the text of the bill ultimately controls interpretation 
of the bill, we would like to note our understanding of H.R. 6304 as 
the Ranking Members of the Permanent Select Committee on Intelligence 
and the Committee on the Judiciary respectively on three matters within 
this legislation.

          role of the foreign intelligence surveillance court

  The authority of the Foreign Intelligence Surveillance Court (FISC) 
or any court in approving foreign intelligence collection generally, 
and specifically the surveillance of foreigners located in other 
countries, was an issue of great debate during negotiations and the 
resulting text was delicately constructed. For the first time ever, 
this bill will statutorily insert the FISA court in a limited way into 
the Executive's Constitutional authority to collect foreign 
intelligence information targeting foreign persons in foreign 
countries. This unprecedented move was an accommodation to those who 
believed that the court could provide some sort of additional check to 
ensure that the IC is properly using its procedures to target a 
foreigner abroad and to minimize U.S. person information that may be 
incidentally obtained. There is no mechanism included in the text that 
would provide for a probable cause or similar type of review that the 
FISC has done in the past with respect to traditional FISA 
applications, but rather a method for the FISC to verify that the 
Intelligence Community is following the law and its own procedures when 
it targets foreigners abroad for surveillance under this law. The FISC 
is also required to approve procedures developed and used by the 
Intelligence Community. It is important for the FISC to adhere to the 
limited role set forth in the text of this bill, and to recognize that 
it is a different role from that which it has traditionally held with 
regard to traditional, individual FISA applications. This should not be 
construed as an opening to insert the courts further into foreign 
intelligence matters that properly lie within the Executive's purview.
  It is also important to note the flexibility that remains with the 
Executive Branch to prevent gaps from forming in the future that are 
similar to those we saw last August before the Protect America Act was 
passed. This bill permits the Attorney General and Director of National 
Intelligence to immediately authorize intelligence collection, as 
provided for under the law, upon a determination that ``exigent 
circumstances'' exist. While the text of the bill uses the term 
``exigent circumstances,'' the use of this term is not intended to 
implicate in any way the use of that term in criminal procedure 
jurisprudence as an exception to the Fourth Amendment warrant 
requirement. See, e.g., U.S. v. Karo, 468 U.S. 705 (1984); Warden v. 
Hayden, 387 U.S. 294 (1967); McDonald v. U.S., 335 U.S. 451 (1948). 
Rather, section 702 specifically defines its use of the term ``exigent 
circumstances'' for purposes of targeting a foreign person reasonably 
believed to be located outside the United States as those circumstances 
that will result in the loss or failure to timely acquire intelligence 
important to the national security of the United States. The compromise 
text was delicately drafted and reaching compromise on the bill was 
premised, in part, on maintaining flexibility for the Intelligence 
Community to immediately initiate surveillance in situations where 
intelligence may be lost, or not gathered in time to act on in a way 
that best protects the United States. This section is designed to 
prevent the type of intelligence gaps that put us in a critical 
situation during the summer of 2007.

                            exclusive means

  Section 102 of the bill provides that the procedures in FISA and in 
the relevant provisions of the federal criminal code are the exclusive 
means for electronic surveillance. It is important to note that section 
102 of H.R. 6304 denotes the statutory exclusive means for acquiring 
foreign surveillance. In enacting this section, Congress did not intend 
legislatively abrogate any inherent Article II powers of the Executive 
Branch. See In re Sealed Case No. 02-001 (FISCR 2002) (citing the 
holding in U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) that 
the President has inherent authority to conduct warrantless searches to 
obtain foreign intelligence information).

      protections for electronic communications service providers

  The provisions in Title II set forth a process under which the 
Federal district courts would have jurisdiction to review both 
prospective and retroactive claims relating to alleged assistance to 
the intelligence community. The standard and type of review by the 
courts with respect to the retroactive liability protections were 
issues of great and delicate debate while this bill was being drafted. 
Careful and lengthy discussions took place about which court would 
review the Attorney General certifications, what the certifications 
would contain, and what the standard of review would be, and all of 
these considerations culminated in the text of H.R. 6304 as it passed 
the House on June 20, 2008.
  With respect to retroactive liability protection, the Attorney 
General must certify to the district court that one of two situations 
is present. Either the assistance alleged to have been provided by the 
carrier was authorized by the President, designed to detect or prevent 
a terrorist attack against the U.S. after the September 11th attacks, 
and was the subject of a written request or series of requests to the 
carrier, or the carrier did not provide the alleged assistance. The 
aforementioned written request or series of requests must have informed 
the communications provider that the activity requested was authorized 
by the President, and was determined to be lawful.
  The statute expressly requires the Attorney General's certification 
to be given effect unless the court finds that the Attorney General's 
certification is not supported by substantial evidence that the 
statutorily required elements of the certification have been fulfilled. 
The provision also allows the court to review only certain specified 
supplemental materials (any relevant court order, certification, 
written request or directive) when considering the certification, and 
permits plaintiffs or defendants in civil actions to participate in 
briefing or argument of legal issues to the extent that such 
participation does not require the disclosure of classified information 
to such parties. Careful consideration went into the drafting of this 
provision, and the final text is very clear about what the federal 
district court may consider in its review under this section. The bill 
is intended to require and authorize the district courts to review 
exactly what the text of H.R. 6304 specifies, which does not include a 
review of the underlying legal basis for any representations that may 
have been made in a written request or series of requests for 
assistance to a company during the life of the Terrorist Surveillance 
Program. Rather, these provisions were intended to ensure that any 
companies that may have provided assistance to the government did so 
based on their good faith reliance on specified representations made to 
it by the Government.