Electronic Surveillance Modernization Act
ELECTRONIC SURVEILLANCE MODERNIZATION ACT -- (House of Representatives - September 28, 2006)
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Mr. VAN HOLLEN. I thank my colleague, Mr. Speaker.
Let us be clear about one thing. As we have all said, we understand that electronic surveillance is a vital tool in the war on terror. We all want to know when Osama bin Laden is calling: when he is calling, who he is calling, and what he is saying. Existing law, FISA, gives the President the authority to do that. And if the President wants greater flexibility in using that authority, he should come to the Congress and tell us exactly what additional authority he needs.
As has been said, this Congress has already amended FISA, the electronic surveillance law, more than 25 times since 9/11 to accommodate changing technologies. That is why it was so troubling to learn that what we as a Congress did in the PATRIOT Act with respect to electronic surveillance was essentially a meaningless exercise. We gave the President expanded authorities, but the President has since argued that he can go beyond the expanded authorities that we gave him, and he has ignored the work of the Judiciary Committee and this Congress.
On what basis does he do this? This President claims when it comes to conducting electronic surveillance he is, in the final analysis, not constrained by the laws passed by this Congress. He claims his constitutional authority as Commander in Chief under article II in this area ultimately allows him to ignore the will of the Congress.
Take a look at the administration's legal memorandum of January 19, 2006. Essentially, they say that we don't have the power ultimately to regulate in this area. And I find it incredibly curious that after the Judiciary Committee, on a bipartisan basis, adopted language proposed by Mr. Flake that simply said Congress finds that article I, section 8, clause 18 of the Constitution, known as the necessary and proper clause, grants Congress clear authority to regulate the President's inherent power to gather foreign intelligence. That was passed on a bipartisan basis. It is gone from this bill. Mr. Flake's amendment is gone from this bill. That is taken out of this bill.
Now, imagine, here we are as a Congress, in passing a law that seeks to regulate the President's authority in this area, albeit giving him additional authorities, that in passing that law we strip out the provision that says we as a Congress find that we have the power to regulate in this area. It is a total abdication of congressional responsibility. It is ceding the President's argument that Congress doesn't matter in this area.
I believe, ultimately, it is a dangerous power grab on behalf of the administration; and this Congress, on a bipartisan basis, has not stood up to our responsibilities under the Constitution.
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