Daniel Lungren

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. That's a very basic thing we are dealing with, foreign intelligence.

Mr. DANIEL E. LUNGREN of California. I thank the gentlelady for her comments. She mentioned a particular instance in which we brought lawyers into a situation that if you looked at it from the outside doesn't make much sense; you stop battlefield operations in order for lawyers to determine whether or not we can listen in on conversation between non-U.S. persons outside the United States. When you look at the other side of the aisle's response to this problem, you see what they have done is they have elevated the judiciary to the primary role in these decisions. That is, in my judgment, a complete misunderstanding of the proper role of the courts. Look, since Marbury v. Madison, the eminent case basically saying that the Supreme Court gets the last say on constitutional issues, there has been a misunderstanding by some that that means that the Supreme Court, the judicial branch, is somehow superior to the other two branches of government. That is not the case in the area of war-making capacity or carrying out a war. If you look at the Constitution, you will see very, very clearly that the Constitution specifies specific powers in article I to Congress and in the executive branch in article II, and the United States Supreme Court has already told us that there are some matters, believe it or not they have said, better suited for disposition by the elected branches of government. The War Powers Act, or, excuse me, the war power, the right to declare war, given to the Congress; powers of the purse, given to the Congress. The President possesses authority relating to his constitutional status as Commander-in-Chief as well as all executive authority. So these are very, very distinct. What we have seen on the other side of the aisle is an elevation to the altar of judicial determination in these cases. This is not just the only thing. The leaders on the other side want to take now and give habeas corpus rights to those people we have at Guantanamo, those people we have taken off the battlefield.

Mr. DANIEL E. LUNGREN of California. Unless that cell had already been identified by us, we knew who they were, we had already gotten legal permission to do that, we wouldn't be able to do that.

Mr. DANIEL E. LUNGREN of California. Against terrorist targets internationally, absolutely. In the process, we will grant more protection under the law to Osama bin Laden than we do to an American citizen accused of a crime in the United States. That is the utter insult in the whole process.

Mr. DANIEL E. LUNGREN of California. That is the absolute testimony of the experts who actually do it.

Mr. DANIEL E. LUNGREN of California. If I could just respond to that, let's remember, we are not talking about domestic terrorists. We are not talking about domestic criminals. We are not talking about American citizens. We are talking about non-Americans not in the United States. That's what we are talking about, and the American people need to understand that.

Mr. DANIEL E. LUNGREN of California. The law, prior to our change in August, did not permit us to, at least as determined by the FISA Court last year.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, there is no other issue more central to the core responsibility of government than the duty to protect the safety and security of the American people. The right not to be killed is foundational to all other rights. The actions we take with respect to the Foreign Intelligence Surveillance Act, better known as FISA, will reflect the level of seriousness with which we have assumed this fundamental obligation. While I take a backseat to no one when it comes to the protection of civil liberties, it is essential to understand the proper context of the issue by us. Mr. Speaker, the focus of the debate here relates to overseas intelligence, the implications for the privacy rights of Americans, talked about so loudly on the floor last week by our colleagues on the other side of the aisle, the implications for privacy rights of Americans where surveillance targets of non-U.S. persons overseas is minimal to nonexistent. This debate over FISA must not be morphed into an ideological crusade by those who have such a visceral dislike for President Bush that any perceived defeat for this administration is in some perverse way chalked up as a victory. The debate is not about President Bush; it is about protecting the lives of those who have sent us here to represent them. And it is serious business. In my estimation, this is perhaps the most important issue that we will face here in the 110th Congress. It has been my privilege to serve on both the Homeland Security and Judiciary Committees. It is my belief that we have made progress in protecting the homeland since 9/11. Under the leadership of both parties on the Homeland Security Committee, there have been disagreements about the particulars, but there has always been a bipartisan commitment to moving the ball forward to make our Nation safer. To be brutally honest, we cannot rely on the prospect of getting it right every time someone might seek to come here to kill innocent Americans. The idea of having to construct a perfect defense in and of itself is not conceivable. However, this is where the role of intelligence comes into primary focus. Developing a homeland security strategy must not be considered in isolation. Intelligence collection overseas is the crucial element in any strategy to secure the homeland. Otherwise, we fall prey to what I refer to as the Maginot syndrome. You remember the Maginot line. That is where the French learned a terrible lesson concerning the folly of relying on the idea that they could protect themselves with a focus on massive defense perimeter. Much more is required and, again, intelligence collection targeting non-U.S. persons can extend our homeland defense perimeter overseas. Brian Jenkins of the RAND Corporation, a noted expert on terrorism, has stressed that our intelligence capability is a key element in our effort to protect our homeland. As he says, in the terror attacks since 9/11 we've seen combinations of local conspiracies inspired by, assisted by, and guided by al Qaeda's 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. So how do we make sense out of what is taking place in this House with respect to our consideration of FISA, the Foreign Intelligence Surveillance Act? Foreign intelligence surveillance, I'd like to underscore. The manner in which we address this crucial national security question is a clear measure of our level of seriousness about the threat posed to our Nation from another terrorist attack. The bottom line question to be asked is whether or not we are safer as a result of the action taken by this House concerning the collection of overseas intelligence. As in the game of football, you're either advancing the ball or you are losing yardage. Does our action make America safer or does it impose obstacles in the path of the intelligence community which make their job more difficult? In making this determination, I would suggest that the line of scrimmage should be drawn with the Protect America Act. That is the act we passed in early August, on a bipartisan basis, responding to the request of Admiral McConnell, the Director of National Intelligence. We should understand that that act represented a compromise reflecting what Admiral McConnell, the Director of National Intelligence, identified as absolutely necessary, absolutely necessary to the task of protecting the American people. Based upon his service to our Nation, I would suggest we should take his considered opinion with the seriousness that it deserves. As a career naval officer, former head of the National Security Agency under President Clinton for 4 years, and the current Director of National Intelligence, Admiral McConnell has had a distinguished career in his service to our Nation. Admiral McConnell and General Hayden came to the Congress with a larger package of needed changes to the Foreign Intelligence Surveillance Act last April. However, in order to close what Admiral McConnell described as gaps in our intelligence, that is, an inability for us to be able to actually find the dots that were out there, we had to act immediately. A compromise was, therefore, reached by this body this past August. He defined the concept of ``gap'' to mean this: foreign intelligence information that we should have been collecting. In fact, Admiral McConnell indicated that prior to the enactment of our Protect America Act in August, we were not collecting somewhere between one-half and two-thirds of the foreign intelligence information which would have been collected were it not for the recent legal interpretations of FISA which required the government to obtain prior FISA warrants for overseas surveillance. In many cases, we couldn't obtain them. You have to have evidence to reach a standard that, frankly, at that stage you cannot reach. Secondly, the volume of number of targets and the paperwork and, more than the paperwork, the intellectual work, the cost in time by taking analysts off the job of analyzing, to working up these requests for warrants, basically made it impossible for us to be able to go after these targets, which we'd always been able to go after in the context of FISA as it was passed in 1978. What's the problem? The problem is that a definition of electronic surveillance constructed almost 28 years ago certainly has not kept pace with changes in technology. Ironically, when FISA was enacted, almost all international communications were wireless. Most local calls at that time were on a wire and fell within the definition of electronic surveillance requiring a warrant. Today, it's just the reverse. Almost all international communications are transmitted by wire. Thus, international communications not intended to be covered by the warrant requirement in the 1978 act are now inadvertently covered because of the change in technology. This was never ever the intention in Congress. Again, the act we passed in August closed the resulting national security gaps. However, less than 3 months later, here we are in the House of Representatives, the leadership of this House is now trying to reinvent the wheel. It will be one thing were we considering the other elements of a larger package which General Hayden and Admiral McConnell presented to us back in April, but that's not the case. Rather, the leadership of this body is retreating from the provisions of the Protect America Act, which Admiral McConnell told us he needs in order to do his job. The so-called RESTORE Act undoes core provisions of this compromise that we were told was necessary to close the gaps in our intelligence. That's why I call the RESTORE Act the Repeal Effective Surveillance Techniques Opposing Real Enemies Act, because that's what it does. It takes away the techniques that we allowed under the law that we passed last August in response to requests from Admiral McConnell based on his considered judgment that he was not able to do the job to protect the American people from the threat abroad. Admiral McConnell affirmed that prior to the Protect America Act the intelligence community attempted to work under the law as interpreted by the court. Unfortunately, he found that as a result of working under those restrictions his agency was prohibited from successfully targeting foreign conversations, foreign conversations, that otherwise would have been targeted for possible terrorist activity. Admiral McConnell has made it clear that although there remains elements of the larger package which would further enhance our ability to conduct surveillance against al Qaeda and other terrorist groups, the Protect America Act, that act that we passed in August which is now the law, has provided us with the tools, as he said, to close gaps in our foreign intelligence collection. Then why are we seeking to make these critical changes in the Protect America Act before the ink is barely dry? Well, one thing is certain: the immediate reviews by the leftist blogosphere were hardly positive. Although Admiral McConnell has worked for both President Clinton and for President Bush, much of the criticism of the act in the wake of its passage seemed to stem from these objections, now, listen to this, that the White House was trying to influence the outcome of the negotiations which took place prior to its enactment. Imagine that. When Admiral McConnell appeared before our Judiciary Committee, he faced questions along the lines of what did the White House know and when did they know it. Now, think of this: the idea that the White House would seek to have input on issues relating to the national security of the United States is about as startling as the discovery that gambling, yes, gambling, was taking place in Joe's bar during the movie ``Casablanca.'' This should not be the issue. Again, it's not about George Bush, whether you dislike him, love him or are indifferent to him. The only valid question is how best we can protect the American public from al Qaeda and others who seek to kill us. Surveillance of foreign persons outside the United States is a central part of that effort, and the bill they presented on the floor last week, the so-called RESTORE Act, changed what we had done in August to make it difficult, in some cases impossible, to gain that information. Even if it is Osama bin Laden on the line calling into the United States, under the terms of the bill that was presented on the floor, we couldn't use information gathered from that conversation against Osama bin Laden unless we went to a court for a court order, unless the Attorney General could specifically show that information was leading to the death of a particular individual. Now, I've said this on the floor before and I will say it again: that's just plain nuts. There's no other way to explain it. There is absolutely no other way to explain it; and perhaps with an ability to explain this kind of thinking on the floor, I would yield to the gentlelady from Tennessee to enlighten us as to her observations as to what is taking place on the floor on this important issue.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the gentleman for his words. And let me just finish on these words. Justice Robert Jackson of the U.S. Supreme Court once said, ``The Constitution is not a suicide pact.''

Mr. DANIEL E. LUNGREN of California. That is correct.

Mr. DANIEL E. LUNGREN of California. Yes, I would be happy to yield.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I would just like to say, because we keep hearing that we are not concerned about civil liberties and so forth and that courts ought to look at this rather than making decisions by the President of United States, many people fondly remember Justice ``Whizzer'' White on the United States Supreme Court, an appointee of President John F. Kennedy. And in the seminal case in the Supreme Court dealing with the question of privacy and wiretapping called Katz versus U.S., he said this: ``We should not require the warrant procedure and a magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.'' Because the fourth amendment talks about protection against unreasonable searches and seizures and we never hear on this floor that qualification. It is reasonable. So how do we protect American citizens in this? The process of minimization that we talked about that is followed by everybody in the NSA. And I would just show this to the gentleman. This chart shows the procedures already put into place at the NSA, National Security Agency, to implement the Protect America Act and ensure that Americans' civil liberties are protected by minimization. Look at this: Internal oversight, they have training built on the foundation of compliance training. They have an annual requirement to read the legal compliance and minimization documents. They have advanced training and a competency test. Everybody out there has to take the test and pass or they can't be involved in the program. They have new training in the authority and the competency test. They understand the legislative changes, the documentation and the termination. They have spot checks and audits to assess compliance. They have somebody else come out within their organization and check up on individuals. And then they have an assessment of management controls. In other words, they have multiple reviews on a regular basis of what's going on there. And in addition, what they have done is they are subjected to oversight by the Office of the Director of National Intelligence and the Department of Justice every 14 days, every 30 days, and every 60 days. And then on top of that, they have the Congress that can look at things. That, the American people should understand, is the seriousness with which the agency is undertaking their responsibility to protect Americans from terrorists overseas and to make sure there is no inadvertent violation of the civil liberties of Americans.

Mr. DANIEL E. LUNGREN of California. I would be happy to yield.

Mr. DANIEL E. LUNGREN of California. That is true. And I would say it is similar to going to the doctor and the doctor's telling you that you need an operation to repair a faulty valve in your heart, and before you make the decision, you have to go to a judge to get permission to follow the doctor's order. I don't think that's what I would want to do.

Mr. DANIEL E. LUNGREN of California. Reclaiming my time, not only could we not disseminate, but this is the language: ``or used for any purpose.'' That's pretty broad, I would say.

Mr. DANIEL E. LUNGREN of California. The Senate was going to pass a bill. Not that bill.

Mr. DANIEL E. LUNGREN of California. I'm sure glad we're not delaying now. But go ahead.

Mr. DANIEL E. LUNGREN of California. Well, that's good to hear. Then we will expect to see that language in the bill when it returns.

Mr. DANIEL E. LUNGREN of California. So it's the gentleman's statement that you're willing to accept the motion to recommit, and your side is the leadership.

Mr. DANIEL E. LUNGREN of California. If I might take my time on that point. Promptly means it goes back to committee. It doesn't say it can't come back for 2 weeks. It goes back to committee. Now, we have some rules here that require a few days. We also have something called waiver of rules that has happened virtually on every rule that we've had here, presenting a bill to the floor. And let me ask the gentleman, if, in fact, your concern was it would be a delay of a week or two, what are we doing now? I would yield to the gentleman.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield 3 minutes to the distinguished gentleman from Pennsylvania (Mr. Dent), a member of the Homeland Security Committee.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, let me just use the balance of my time to say that I thank the chairman for the work he has done on bringing this to the floor at this time so we can complete action with the Senate and get it to the President's desk to be signed. I would also like to mention the ranking member of the full committee (Mr. King) who could not be here because he is still returning from the funeral for his mother who passed away this past week. Mr. King has done tremendous work on this, particularly the amendment for liability protection for the sellers of ammonium nitrate if they act in good faith to protect the American people. Mr. King has done yeoman work in this regard to this and other bills. I hope that we would recognize that at this time. Again, Mr. Speaker, this is an example of a bipartisan approach to an issue that affects all Americans, Democrat, Republican, independent, whatever. It is of the utmost importance. And once again, I thank all the members, Democrat and Republican, who worked on this, and I thank my chairman for bringing this to the floor and allowing us to vote on this time. I would ask for Members to have full support for this bill. Mr. Speaker, I yield back the balance of my time.

Mr. DANIEL E. LUNGREN of California. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, a vote on this legislation is long overdue. The need to regulate ammonium nitrate has been evident since the bombing of the Alfred Murrah building in 1995. This legislation is needed to protect Americans from those who seek to utilize this dangerous chemical in terrorist attacks. But as the chairman said, we must balance this threat to our Nation's security with the need for ammonium nitrate to remain accessible because it is a highly effective agricultural fertilizer and has other legitimate uses in industries like mining. The legislation before us creates a system of regulation so that ammonium nitrate is available for legitimate use, but does not fall into terrorist hands; a system that keeps us safe, but does not burden farmers. I believe this legislation strikes that balance. We originally took up this legislation in the 109th Congress and we approved it in the Committee on Homeland Security. But the 109th Congress ended before this legislation could be considered on the House floor, so I'm happy to see this legislation before us again in the 110th Congress. And I thank the chairman for bringing it to us at this time. H.R. 1680 is a bipartisan bill. We worked with our colleagues across the aisle to strengthen the prevention of terrorism component of this bill by insisting on a registration requirement for those who purchase ammonium nitrate rather than just those who sell it. We were happy to see the committee accept three Republican amendments to this bill. I introduced an amendment which requires the Department of Homeland Security to check the name of applicants for ammonium nitrate registration numbers against terrorist watch lists. This will prevent suspected terrorists from acquiring this deadly material and will alert law enforcement authorities of potential plots under way. Other Republican amendments provide civil liability protection for the sellers of ammonium nitrate in the event they refuse to sell ammonium nitrate to suspect purchasers or make reports to law enforcement about suspect purchasers. No seller of ammonium nitrate should be afraid to deny sale of this dangerous material out of fear of legal action. Ammonium nitrate is a legitimate chemical used to fertilize our crops; but its availability, accessibility, ease of bomb-making, cost, and history of prior use make it an obvious material for large explosives that could be employed in terrorist attacks. We need only to look back in recent history to understand that ammonium nitrate can be the terrorist tool of choice: the al Qaeda bombings of U.S. embassies in Kenya and Tanzania in 1998; in November 2003 scores of individuals killed when terrorists detonated ammonium nitrate bombs in Istanbul; in March 2005 British anti-terror police seized a half ton of ammonium nitrate from suspects accused of being affiliated with Islamic terrorists; later that month, over 3,000 pounds of ammonium nitrate was stolen by armed terrorists in Thailand; the arrests last summer, June 2006, of 17 people in Canada on charges that they were planning on using ammonium nitrate to make an extremely powerful bomb. Al Qaeda has an Internet hit on how to make ammonium nitrate bombs. An ABC News team last fall demonstrated how easy it might be to acquire ammonium nitrate. With just $300, ABC interns managed to purchase 1,000 pounds of ammonium nitrate in 2 days in farm supply stores from North Carolina to the District of Columbia. No one questioned why they needed ammonium nitrate. No one asked for their identification. That ammonium nitrate was stored in a public storage facility just a few miles from where we stand today. These events have demonstrated vulnerabilities that put us in the crosshairs of terrorist sights right where we live, work and travel. Here in the U.S., a few of our States, including California, have already begun to implement laws to secure the handling of ammonium nitrate. The chemical and farming industry developed important protections in their respective industries to keep this substance out of the hands of terrorists. These are important efforts, but it creates a patchwork where all a terrorist has to do to build a ammonium nitrate bomb is to travel from New York to Pennsylvania to acquire it. Congress needs to step in to set a national policy. This legislation does just that. It sets a floor across the Nation so that ammonium nitrate is used as intended, that is, to grow our Nation's crops, not to create the next Oklahoma City bombing. We believe fair and proportionate regulations will allow ammonium nitrate to continue to be available to legitimate users who are not a security concern while at the same time preventing and deterring its acquisition by those who wish to do us harm. By supporting H.R. 1680, we will take another step in upholding our responsibility to protect the lives and livelihood of our American citizenry. And with that, I reserve the balance of my time.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Madam Speaker, according to the FBI testimony before our House Committee on Homeland Security: ``The European and American experience shows that prisons are venues where extremists have radicalized and recruited among the inmate population.'' Now, this is not just a theoretical concern. We all remember the case of Richard Reid, apprehended while attempting to detonate a bomb on a U.S.-bound commercial flight in December 2001. Well, that same Mr. Reid is believed to have been radicalized by an imam while incarcerated in Britain. In 2005 we learned of the California prison-based case of the ``Assembly of Authentic Islam.'' These individuals were involved in almost a dozen armed gas station robberies in the Los Angeles area, with the goal of financing terrorist operations. They were indicted by a Federal grand jury for conspiracy to levy war against the U.S. Government through terrorism. And in April of this year, in a hearing that we held out in Torrance, California, Sergeant Larry Mead of the Gang Intelligence Unit, Los Angeles County Sheriff's Department, testified that ``analysis shows that radicalization and recruitment in U.S. prisons is still an ongoing concern.'' Similarly, in a recent report, the NYPD noted that prisons are ``an excellent breeding ground for radicalization.'' The key to the success of stopping the spread of radicalization is identifying how radicalization begins and eliminating its breeding grounds. We know we have difficulties with this phenomenon in our prisons, but we don't know enough about it. We need to have collaboration between the Federal prison system authorities and the State prison system authorities and within the prison system authorities themselves. We need to bring together the best thinkers on this, the best people who have experience in dealing with this already at the ground level; and, in fact, this bill does that. Radicalization is not that well understood, and through this bill we will take an in-depth look at how it occurs. The commission provided for in H.R. 1955 would give our government an in-depth, multidisciplinary look at radicalization. And why is that important? Because no one has the single answer on this. Yes, we have the background of prisons as the general background to look at the radicalization in prisons, but how does it occur? Why does it occur? And why are we seeing a rise in this at this particular time when it is perhaps most dangerous to the American people? Radical Islam and its advocates around the world are a threat to America, but we have to understand we might develop a threat within the United States, as evidenced already by certain actions that have occurred. And therefore I would suggest that we vote ``yes'' on H.R. 1955 so we can get the facts upon which we can plan for prevention, not just taking care of the problem after it occurs.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Madam Speaker, as we listen to the comments of our colleagues on the other side of the aisle, it is obvious that what they intend to do is to make this ``SCHIP Week'' and ``SCHIP Month.'' You kind of wonder why they are doing this. Reflect back on last week when we had a most important vote scheduled for this floor that somehow was removed. It was called the FISA vote. It is the question of how we enable ourselves to protect us and our children and our grandchildren against the attacks of those who are terrorists around the world. We do it in many ways, but absolutely essential is intelligence. Madam Speaker, the FISA bill, the Foreign Intelligence Surveillance Act, would have been destroyed by the bill placed on the floor last week by the majority, the so-called RESTORE Act. It actually gave greater protection to Osama bin Laden in a telephone conversation than an American citizen in the United States accused of a crime. RESTORE: What does it mean? Repeal Effective Surveillance Techniques Opposing Real Enemies. Go out to NSA and see what they are doing. Understand what we need to do in this country and then bring a bill back to this floor that restores the ability of the United States to find out about our enemies before they attack.