Daniel Lungren

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. He would be bound by it with respect to the expenditure of funds in this particular bill. I don't think there is any question about that.

Mr. DANIEL E. LUNGREN of California. I don't argue at all that this is an inappropriate amendment to be considered, because this is the proper exercise of our authority to the power of the purse. What I have suggested is the arguments that the President is acting illegally or unlawfully are not appropriate, because he is acting under the Constitution, in my judgment.

Mr. DANIEL E. LUNGREN of California. It is the vesting clause of the Constitution, vesting in the President the executive authority, coupled with his authority as Commander in Chief. Now, let me just say to the gentleman, so we can make it clear, I have never argued that the President has this authority in all things, as some have suggested, to kill people, to do this, to do that. I have cited authority which suggested in the area of gathering foreign intelligence, which is about what we are talking. Secondly, I would just say that the gentleman is right that we do have the power of the purse.

Mr. DANIEL E. LUNGREN of California. I thank the gentleman for yielding. I was speaking of the vesting clause in the U.S. Constitution that gives the President with the executive powers----

Mr. DANIEL E. LUNGREN of California. I don't have the exact words.

Mr. DANIEL E. LUNGREN of California. I can't quote Mr. Negroponte, but I can quote Benjamin Franklin who, in 1776, explained the unanimous decision of the Committee on Secret Correspondence for not telling their colleagues in the Continental Congress about a covert operation. And he said we find by fatal experience that Congress--

Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I rise in opposition to this amendment. There has been a lot of talk about following the law. People seem to ignore what Griffin Bell said at the time the Carter administration brought this bill before the Congress to be passed into law. At that time he very carefully said that enactment of FISA did not exclude the authority the President has under the Constitution. We have heard on this floor about illegal acts. I would remind my colleagues that the supreme law of the land is the Constitution, and the President has inherent authority under Article II of the Constitution in this area. We may not like it, but the fact of the matter is that is one of the reasons you have elections for a President, to have the authority and the power that he has under the Constitution. The vesting clause of Article II of the Constitution which gives the President executive authority, coupled with his authority as Commander in Chief of the Armed Forces, forms the basis for the surveillance of al Qaeda members and those who are affiliated with al Qaeda. The President's actions are certainly consistent with the Founding Fathers, as expressed in John Jay's observation in Federalist Paper No. 64: ``The President . . . will be able to manage the business of intelligence in such manner as prudence may suggest.'' An examination of historical records makes clear that the Founding Fathers intended the President to have primary, if not exclusive, control over the business of intelligence. We may not like it, but that is what the Constitution establishes. We may have a FISA law, but that does not restrict the President if, in fact, he has inherent authority under the Constitution. The argument that the President has somehow violated the law misunderstands that the Constitution is the supreme law of the land. Congress has no more authority to intrude on the executive authority of the President than the President does on the enumerated authority of the Congress. As James Wilson argued during the ratification debate in his own home State of Pennsylvania: ``The President of the United States can shield himself and refuse to carry into effect an act of Congress that violates the Constitution.'' In the same context, John Jay points out in Federalist 64 that ``it surely does not follow that because they have given the power of making laws to the Legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.'' The United States Supreme Court summed it up well in Ex parte Miligan: ``Neither can the President in war more than in peace intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law.'' It is interesting to note for those who have talked about historical record that the First Congress, which created the Department of Treasury and the Departments of War and Foreign Affairs, gave Congress access to the records and papers of the Treasury Department, but not to the Departments of Foreign Affairs and War. It is clear that the power of the President vis-a-vis Congress was broader with respect to foreign affairs than it was in the domestic realm of governance. We may not like it, but that is what the Constitution says. According to Madison, the ultimate check on Presidential power possessed by the Congress rests with the ``first principle in free government.'' According to John Marshall in Marbury v. Madison, the limits on such Presidential authority must be found elsewhere in the Constitution itself. Look, we ought to look at what Justice White observed in his concurring opinion in the Katz decision. These are the words of Justice White: ``Wiretapping to protect the security of the Nation has been authorized by successive Presidents.'' In other words, it did not start with this administration. He said, ``The present administration would apparently save national security cases from restrictions against wiretapping.'' Again, Justice White's words: ``We should not require the warrant procedure and the 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.'' As explained publicly by the President, he followed the prescription of Justice White. He has personally had hands-on over this. He has had his Attorney General with hands-on authority over this. But then in addition, he did notify the Congress. He notified the leadership of the House and the Senate. He notified the leadership of the House and the Senate committees of jurisdiction. No, he did not notify all of us, but he comported with the law and the interpretation of the Constitution suggested by Justice White. I would suggest if one looks up the definition of the word ``moderate'' in Webster's Dictionary, you would find the picture of Justice White. He started the middle ground on all of this. So I would suggest, as we look at this, we understand that we may have a debate about how the President has done it, but to suggest that what he has done is unlawful or illegal does not recognize either the Constitution or the comments of the Founding Fathers in support of the Constitution.

Mr. DANIEL E. LUNGREN of California. Mr. Chairman, that begs the question as to whether or not you can, in fact, effectively do that with the 72-hour limitation. There are those running the program that suggest that that is not possible, not because necessarily the limitation on going to court, but all of the work that needs to go forward before you get to the court to get the approval. That is what we ought to be talking about.

Mr. DANIEL E. LUNGREN of California

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Hensarling), who sits on the Budget Committee and the Financial Services Committee.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield to the gentleman from Georgia (Mr. Kingston) for a unanimous consent request. (Mr. KINGSTON asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, it is my privilege to yield a real 3 minutes to the distinguished gentleman from Virginia (Mr. Tom Davis), the chairman of the Government Reform Committee. (Mr. TOM DAVIS of Virginia asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield to the gentleman from California (Mr. Radanovich) for a unanimous consent request. (Mr. RADANOVICH asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield myself 15 seconds just to say I do not dispute the figure given by the gentleman from Pennsylvania. I dispute his logic. I question the cause-and-effect relationship. Our presence has not created terrorists. Terrorists were around much before that. In the instance he cited with previous Presidents, yes, they did react, but obviously the totality of their reaction did not stop terrorism. We have a different plan, a different approach. That is what this President is following. Mr. Speaker, I am pleased to yield 2 minutes to the distinguished gentleman from Indiana (Mr. Pence), a member of the Judiciary Committee. (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield to the gentleman from Georgia (Mr. Gingrey) for a unanimous consent request. (Mr. GINGREY asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from Pennsylvania (Mr. Dent), a member of the Homeland Security Committee and the Government Reform Committee. (Mr. DENT asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I am pleased now to yield time to the distinguished gentlewoman from Ohio (Mrs. Schmidt), who sits on the Government Reform Committee, 2 minutes.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, we have just two more speakers, the whip and then our majority leader.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield for the purpose of making a unanimous consent request to the gentleman from Georgia (Mr. Price). (Mr. PRICE of Georgia asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I reserve the balance of my time.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield myself 1\1/ 2\ minutes. Mr. Speaker, I have the greatest respect for the gentleman from Pennsylvania. When I returned to this House after an absence of 16 years, he was one of the first people to greet me. I have enormous respect for the work we did together with others here 25 years ago in fighting common battles. I have a general disagreement with him on this approach. I don't question your patriotism. I certainly am attempting not to be sanctimonious about this. But I think there are some real questions that we must pose. One of them would be this: I have heard it said from your side of the aisle that we are attempting to force democracy on this country, and it will never work. Look at the three elections they had, the increasing participation. And, frankly, contrast that with what occurred just this last Tuesday in the Commonwealth of Virginia, where, for a primary to determine who the Democratic nominee is going to be for the Senate, 3 percent of the people showed up, 3 percent of the registered voters. I would suggest if we were on this floor talking about Iraq where only 3 percent supported, people would say democracy is a failure. I am not willing to give up on the Commonwealth of Virginia. I hope we are not willing to give up on Iraq. Secondly, the question about Vietnam. And I have the greatest respect for the gentleman; he served there with distinction, just as my father served in World War II with distinction. But I would suggest there are a number of differences between Vietnam and this experience. And one of the chief ones is this: when we left Vietnam they did not follow us. If we leave Iraq, the terrorists would follow us. Some would suggest that it is a shame that we are fighting them there. I say it is wonderful that we are fighting them there rather than here.

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, it is my pleasure to yield 1\1/4\ minutes to the gentleman from North Carolina (Mr. McHenry). (Mr. McHENRY asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield to the gentleman from New York (Mr. Sweeney) for a unanimous consent request. (Mr. SWEENEY asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. I yield to the gentleman from Ohio (Mr. Gillmor) for a unanimous consent. (Mr. GILLMOR asked and was given permission to revise and extend his remarks.)

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, at this time it is my pleasure to yield the balance of my time to the distinguished majority leader (Mr. Boehner).

Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I yield 5\1/2\ minutes to the distinguished majority whip, Mr. Blunt.