Daniel Lungren

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I rise in opposition to this bill, and I am sorry that I have to do that. I respect the gentleman from Michigan (Mr. Conyers). We have worked on many things together. I believe he is a prime time player, but I disagree with his statement that this bill is ready for prime time. To just give one example, if you look at section 6 of this bill, section 6 of the bill differs with the way we handle minimization under current law by saying that if there is evidence of a crime, it cannot be disseminated to a criminal justice entity. Now, maybe there is a reason for that, but that has never been discussed whatsoever. Secondly, I would say that in the two 1-hour Special Orders I gave, I raised the problem that exists in the underlying bill as we now see it, which is in the very beginning of the bill, and it deals with a section entitled ``treatment of inadvertent interceptions.'' It deals with a situation where the intelligence community believes in good faith that they are dealing with foreign-to-foreign, but inadvertently they capture communication that deals with foreign-to- domestic. And what we say here is that you cannot use that information for any purpose, any purpose. It cannot be disclosed. It cannot be disseminated. It cannot be used for any purpose or retained for longer than 7 days, unless what? A court order is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person, that the information indicates that. I have stood on this floor on several occasions and said what that means is if we have a conversation or a communication involving Osama bin Laden, and everybody recognizes that might be the case, because in the manager's amendment we talk about Osama bin Laden, if in fact that occurs and the communication deals with someone within the United States, and he doesn't in that communication have information indicating a threat of death or serious bodily harm to any person, but indicates where he happens to be, the exact cave where he is at, we cannot operate on that in a timely fashion. I would challenge any Member on the other side of the aisle to read the language in the underlying merged text, page 3, entitled ``Treatment of Inadvertent Interceptions,'' and tell me that I am wrong. This is, whether it is by mistake or you intended it to happen, giving greater protection to a terrorist around the world than you give to an American citizen charged with a crime. I have said it before and I will say it again: I don't believe you intended this, but it is in the bill. As a matter of fact, the gentleman from New York, the chairman of the Constitutional Rights Subcommittee, came to me after we had an exchange on the floor on the issue and said, ``You are right. We goofed up. We should get rid of it.'' Yet we are here with it on the floor. For that reason alone, we ought to defeat the bill.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, will the gentleman yield?

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding. Once again, I would ask my friends on the other side of the aisle: Can anyone explain why, on page 3, you give stronger rights to someone who is a suspected terrorist, even Osama bin Laden, if he has a communication we intercept believing it was going to be foreign-to- foreign, now foreign to someone in the United States, and in that he reveals where he is, why we cannot use that information as we are able to with a legal wiretap in the United States on an American citizen charged with a crime who calls someone who is not a target of a crime? I do not understand it. Page 3. Is there anybody on your side who can explain why you would have that? The silence has been deafening for a month now on this.

Mr. DANIEL E. LUNGREN of California. I would be happy to yield if the gentleman would tell me exactly what I just asked.

Mr. DANIEL E. LUNGREN of California. Reclaiming my time, because I asked you to specifically talk about the language in the bill. I have read it and read it and read it, and you have refused to respond to it, even though the chairman of the Subcommittee on Constitutional Rights told me that I was correct in my reading of the bill and that you folks were going to change it. You didn't change it. I expect that is because you forgot about it. I would invite the gentleman from New York to respond to me, because he intellectually honestly told me just 2\1/2\ weeks ago that you folks were going to change it. Why haven't you done it? Mr. Speaker, the silence I think speaks volumes. This is a bill that is not ready for prime time. It inadvertently protects Osama bin Laden with greater rights than an American citizen charged with a crime.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I ask the gentleman's words be taken down with respect to the use of the word ``deceit.''

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Madam Speaker, let us suppose that I went out to buy a new car today, and I went to the dealer and I made a deal, saw exactly what I wanted, made an agreement on the price, and I called him up tomorrow and asked when it would be available, and I called him up the day after that, and I called him up the day after that, and after 140 days he finally said, you can come in and pick up your car. And when I went in to pick up the car he said, oh, by the way, we have this used car in the back that no one will buy, this clunker, this thing that won't work, and that's part of the deal. Now, you have to not only pay what it's worth, but you have to pay $9.7 thousand additional dollars for it. Would you consider that fair? Would that be considered fair dealing? Would you really be concerned about the purchaser and what they're purchasing, or would it look like sharp practices? Would it look like kind of rope-a-dope? Would it look like a bait-and-switch? What do we have here? We have a bill that's been waiting for 140 days for us to vote on that we have almost unanimous agreement on, and what are they doing? They're tying a clunker to it. Untie this, Madam Speaker, and allow us to get our business done.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I rise in support of this point of order that goes essentially to the question of unfunded mandates contained in this bill. It is very difficult to determine exactly what this bill is since it is nearly 300 pages and we received it last night. Why is the question of unfunded mandates so important? Well, a great example would be exactly what is happening in my home State of California right now; the tremendous, tremendous pressure that my home State is under at the current time as a result of an unprecedented series of fires raging at the same time. And that brings into question of those Members of Congress from my home State who are traveling today back home with the President of the United States in order to assess the damage, to show that the Federal Government is fully involved in concert with State and local governments. And we would ask that the consideration of this rule and this bill be postponed not only on this point of order but because of the circumstances that are occurring in our State at this time. The majority leader said a little bit earlier that, well, things happen all the time and Members miss the opportunity to be here on the floor because they are back home, as if this is an everyday occurrence. My home State has lost almost 1,500 residences, 1,500 destroyed. We have somewhere between half a million and a million people evacuated. That is not an everyday occurrence. That is an exceptional circumstance. And it just is beyond the sense of the cordial nature of the collegiality of this House that ought to prevail for us to be considering this. Nearly 9,000 firefighters from all agencies on the fire lines of California over the last number of days. At least one confirmed death, 18 fires in seven counties, almost a half a million acres destroyed, 104 commercial structures destroyed. The fact is that we ought to come together and work together on issues as important as responding to the natural disaster that is occurring in California just as we should be coming together, working together to try to solve the problem of the unmet needs of poor children and their health in this country. Mr. Speaker, we have not been invited to the table to be able to present this. This point of order ought to be sustained technically on the question of unfunded mandates but really, philosophically on the fact that this is not the time for consideration of this particular rule or this bill.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. I don't think anybody could call that common sense. Only on the floor of the House of Representatives would one dare to call that common sense. I am not one person who dares, nor are my two colleagues here.

Mr. DANIEL E. LUNGREN of California. I appreciate the gentleman's sentiments. And I would just say I don't think there is anybody in this Chamber that depreciates the experiences of 9/11 nor the threat that currently faces this country. That does not excuse anybody in this Chamber or us collectively for making either ill-informed decisions or just wrongheaded decisions. And when we have the expert experience and judgment of people like Admiral McConnell, who told us of the threat that we are currently facing and his inability to do the job that he has sworn an oath to do, and when we responded in a way which he said works, it is totally beyond belief that we would want to change that now. And the other thing is, is there anybody in this Chamber that believes the threat is only until February or is only for 2 years, as was in the bill that was presented to us? This is a long-term threat which necessitates a long-term commitment on the part of the American people, on the part of the Congress, on the part of the entire Federal Government. And we have an obligation to make sure that that takes place. Otherwise, the American people have every right to say to us you have not done the job. So I would hope that when we have this bill on the floor we have an opportunity to make it permanent so that we can tell our adversaries we will throw everything at you, not to convict you after a perpetration of an attack on us but to prevent it in the first place. The American people don't want prosecution. They want prevention first and foremost.

Mr. DANIEL E. LUNGREN

Mr. DANIEL E. LUNGREN. I would be happy to yield after I make this one statement in reference to what the gentlewoman just said. Judge Richard Posner of the Seventh Circuit Court of Appeals put it this way: ``The aim of national security intelligence is to thwart attacks by enemy nations or terrorist groups rather than to punish the perpetrators after an attack has occurred. The threat of punishment is not a reliable deterrent to such attacks, especially when the attackers are fanatics who place a low value on their own lives and when the potential destructiveness of attacks is so great that even a single failure of deterrence can have catastrophic consequences. That is why,'' the judge says, ``when the government is fighting terrorism rather than ordinary crime, the emphasis shifts from punishment to prevention.'' The judge has put it fairly well in almost understandable terms, as the gentleman from Missouri would say. And I yield to the gentleman from Missouri, who would not like to be described as an attorney.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. I'll take back my time. That's precisely the problem. You have to get a warrant before you can take action. And if, in that conversation, something that Osama bin Laden said does not implicate the American whatsoever, does not indicate a threat of death or serious bodily injury to anybody else, but reveals where he is, you are prohibited from dealing with that. The gentleman from New York, I appreciate it. But you know, the great political philosopher, Don Meredith, once said: ``If if and buts were candy and nuts, everyday would be Christmas.'' Now you may wish it. You may hope it. You may think it. These are the words that your side presented to us as a fait accompli. That's what it says. You can't get around it. And the gentleman, as a distinguished attorney, knows that when you go into court you've got to look at the words. We're not going to put people at risk in the CIA, in the FBI and the NSA, in all of those other agencies in the Department of Justice based on the fact that we ought to read these, as I think the gentleman said once before in debate, in a commonsense way. There is no commonsense exception to this provision in the law. I would be happy to yield to the gentlewoman from New Mexico.

Mr. DANIEL E. LUNGREN of California. Well, let me yield to the gentleman from New York. Perhaps the gentleman from New York can tell us when the bill is coming back to the floor.

Mr. DANIEL E. LUNGREN of California. Al Qaeda, Osama bin Laden or other terrorist groups and prevent attacks on the United States or Americans. That was the language. And I might say to the gentleman, it was never offered, we never got to that point. But rather than have a gag rule or follow the leadership we got from the Democratic side, of a gag rule, we also showed it to the other side way ahead of time. And the reaction was what? To pull the bill, or at least to stop in mid- debate on the bill, and we will bring it back.

Mr. DANIEL E. LUNGREN of California. Motion to recommit, yes.

Mr. DANIEL E. LUNGREN of California. I'll be happy to yield in one second. I found that I did have the specific language to which I referred a moment ago. This is the proposed language in the bill: ``If electronic surveillance concerning foreign-to-foreign communications inadvertently collects a communication in which at least one party to the communication is located inside the United States or is a United States person, the contents of such communication shall be handled in accordance with minimization procedures adopted by the Attorney General.'' If that's all it said, that would be fine. But then it says: ``That require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated or used for any purpose or retained for longer than 7 days, unless a court order is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily injury.'' Reading that, as it is written, if Osama bin Laden, in a conversation, communication or whatever to someone who happens to be a U.S. person or is in the United States that is not then a target, under the regime that we have, doesn't implicate that individual whatsoever, but in the course of the conversation, reveals where he is, where he's going to be, we cannot act on that information under this specific language unless the Attorney General determines the information indicates a threat of death or serious bodily injury. Telling where he is doesn't indicate a threat of death to anybody or serious bodily injury to anybody. That's the language that your side has presented on the floor as a fait accompli. We could not amend it. We couldn't even discuss amending it on the floor because we had a gag rule. And the gentleman is a distinguished attorney. He knows how to use words very, very well. You can't change the words that are on the printed page. Let me yield to my friend from Missouri before I yield to the gentleman from New York.

Mr. DANIEL E. LUNGREN of California. Let me just reclaim my time to specifically quote Admiral McConnell on this point. He said in testimony before the Judiciary Committee: ``When you are 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.'' He then said specifically: ``I'm talking about foreign-to-foreign and whether that takes care of the problem.'' These are his words. If you have to pre-determine that it's foreign- to-foreign before you do it, it is impossible. That's the point. You can only target one. If you're going to target, you have to program some equipment to say, I'm going to look at number 1, 2, 3, so targeting, in this sense, if you are targeting a phone number that is foreign. So that's the target. The point is that you have no control over who that target might call or who might call that target.

Mr. DANIEL E. LUNGREN of California. I will reclaim my time. The fact of the matter is that is true. I hope to get the language here in a moment. In the manager's amendment, in the second major paragraph of the amendment, it specifically refers to inadvertent capture of a conversation involving an American on one end. And in those cases it specifically said, if that is the case, you may not use it for any purpose, you may not disclose it, and you may not keep it for more than 7 days, unless you get a specific warrant with respect to that, or the Attorney General makes a specific finding that the information itself relates to the death of an American. Now, the fact of the matter is that was picked up from language that's currently in FISA that has nothing to do with this, that has to do with inadvertent communications gained in another context. So I don't know whether it was inadvertent, it was bad draftsmanship, or it was intentional. But the fact of the matter is, on its face, that is exactly what it does, and that's why I can stand here and say, without fear of contradiction, that it gives greater protection to Osama bin Laden in that instance than we give to an American charged with a crime in the United States. Again, I don't know what the purpose was in drafting it that way. That's one of the problems when you bring a bill to the floor and you have a closed rule that doesn't even allow us to question the language, to attempt to deal with it. And the gentleman can say it doesn't say that. I would suggest the gentleman go back and look at the specific language, because I was astounded when I first read it. I first looked at it and said, this can't possibly be the way. I presented it to the Rules Committee. Not a single person on the Rules Committee or a member of your side of the aisle on the Judiciary Committee or the Intelligence Committee contradicted what I had to say. No one pointed to where that was wrong. That happens to be in the bill. Now, if you want to change it, we ought to change it. But the fact of the matter is that's where it is.

Mr. DANIEL E. LUNGREN of California. Well, if I could take back my time, if the gentleman would specifically say where we misstated, I would love to respond to that. But the gentleman can get his own time to talk about other things.

Mr. DANIEL E. LUNGREN of California. Let me just reclaim my time for a moment. And remembering last week when we had this bill on the floor and we went before the Rules Committee to ask for an opportunity for amendment and debate on our important issues and we were denied that by a gag rule, I would like to yield to the gentleman for purposes of a short debate, because I think this is what we should engage in and why I was so disappointed last week on the rule.

Mr. DANIEL E. LUNGREN of California. Let's understand what we are talking about. I presume Osama bin Laden is sharp enough to realize that maybe he ought to have more than one phone line. You know what we have with bad guys in the United States, they use cell phone after cell phone after cell phone. They use it for maybe a day. They throw it away. They use another one. Don't you think the bad guys trying to kill us are as smart as that? We have to be able to be sharp enough to find this stuff and turn on this information in a timely fashion to save us. We have to have the agility to do that. What has happened with the law we passed in August, according to the NSA, and I was out there yesterday, and according to Admiral McConnell, we are now able to do those things. We now have the agility to do those things. If we were to adopt the bill that was on the floor last week, we couldn't do it. The American people have to understand, no matter what they say about it, the expert on it tells it, we would not be able to do it.

Mr. DANIEL E. LUNGREN of California. Let me also explain one bill. If you look at the bill that the Democratic majority brought to the floor, they say, we take care of this problem. They say, if it's foreign to foreign, you don't need a warrant. Here is the problem that Admiral McConnell explained to us. When you put a tap, or you somehow capture the communications, you only know the front end of the communications; that is, Osama bin Laden is calling somewhere and communicating in some way. You don't know where in the world he is going to end up on the other side of the communication. If, in fact, you have to say ahead of time, we can guarantee that none of those conversations will ever reach into the United States or to an American anywhere, you couldn't get a prior warrant, because you can't guarantee that. What you need to do is to do it the way Admiral McConnell suggested and the way we put it in the law before. If it's a target that is a foreigner in a foreign country, for foreign intelligence purposes, as defined under the law, if that's the case, you don't need a warrant. If, as you collect the communications in some way, you find that inadvertently a communication went into the United States or is with an American citizen, you do what we call, under the law, minimization, which means, if it has nothing to do with that individual on the other end that implicates that individual in any way, you don't use it. But you do use it against Osama bin Laden. What they put in the bill was, very specifically, if we inadvertently capture a communication that involves an American on the other side, guess what we have to do? We cannot use it. We cannot disclose it. We cannot use it for any purpose, and we cannot keep it for more than 7 hours unless we go to a court and get another court order for a warrant.

Mr. DANIEL E. LUNGREN of California. Correct.

Mr. DANIEL E. LUNGREN of California. Yes, absolutely.

Mr. DANIEL E. LUNGREN of California. Right.