Washington, D.C. – House Judiciary Committee Chairman Bob Goodlatte (R-Va.) today delivered the following remarks during the House Judiciary Committee’s markup of the USA Liberty Act (H.R. 3989).
Chairman Goodlatte: Good morning. Today we markup the USA Liberty Act, H.R. 3989, a bill that reauthorizes, among other provisions, Section 702 of the Foreign Intelligence Surveillance Act or FISA. Congress first passed this law in 2008 and then reauthorized it again in 2012. At its core, Section 702 permits the Attorney General and the Director of National Intelligence to jointly authorize the targeting of non-U.S. persons reasonably believed to be located outside the United States to acquire foreign intelligence.
The Section 702 authority is commonly understood to be our nation’s most critical national security surveillance tool. It comprises approximately 25% of the National Security Agency’s electronic collection — offering insight into terrorists’ communications, providing valuable foreign intelligence to our policy makers, and giving an operational advantage to our men and women on the battlefield. In short, we must reauthorize this law to ensure that our country’s intelligence apparatus continues to be the best in the world at protecting the people of our own country and helping to protect our cherished allies in the global battle against terrorism.
Notwithstanding the law’s importance, it is undisputed that Section 702 results in the incidental collection of communications of U.S. persons. While it is already illegal to target a U.S. person under Section 702 authority, the nature of the international communications infrastructure and the fact that actual targets of 702 surveillance do communicate with U.S. persons make it impossible for all U.S. person communications to be avoided or filtered. In fact, the term “incidental collection” is used to describe the collection of U.S. person communications under 702 rather than, for instance, “unwanted collection,” because if we have targeted an ISIS leader overseas and a terrorist cell in the U.S. then communicates with that ISIS leader overseas, it is necessary to read those communications in order to block a terrorist attack on innocent Americans. Nevertheless, Section 702 surveillance does pick up innocent Americans’ communications, too, and so Ranking Member Conyers and I set about reforming this law to ensure that civil liberties are protected throughout all steps of the 702 paradigm: at the point of collection, following the incorporation of 702 collection into U.S. databases, and when the contents of 702 collection are searched for evidence of crimes.
Despite the fact that 702 acquisitions must be conducted in a manner consistent with the Fourth Amendment, and every court that has considered the issue has found that 702 adheres to the Constitution, there are valid reasons why I and many Members on this Committee have called for reforms to ensure that this national security authority is not improperly used to circumvent traditional privacy protections in routine criminal investigations. This is where the bulk of our energies have been focused in drafting.
The USA Liberty Act, for the first time, will restrict access to the content of 702-acquired communications when the purpose for seeking such content is to return evidence of routine crimes. We do this by subjecting the Executive Branch to the highest legal investigative standard possible — probable cause — before agents or analysts can access the content of 702-acquired communications for routine criminal purposes. Federal court oversight is also provided by our bill through a requirement to obtain a court order, otherwise known as a search warrant in the criminal context, before the government can look at any communications content acquired under 702, if the purpose of the access is to gain insight into a routine crime. Therefore, unless an agent is seeking evidence of foreign intelligence like a terrorist plot, a probable cause-based order will be required before any access to the content of 702-acquired communications is authorized, subject to limited exceptions.
I have also heard concerns from Members of this Committee about the lack of prosecutions of leakers of classified information. I agree this is a major problem. The Department of Justice should be devoting significant energy and resources toward investigating these leaks and bringing offenders to justice. Importantly, the USA Liberty Act contains strong reforms to increase accountability, transparency, and criminal liability when laws are broken and someone publicly leaks classified information. Specifically, the bill requires agencies to document all unmasking requests and requires the agencies to retain that information so that if leaks arise, Congress can audit the records to root out leakers if DOJ fails to act. The bill also includes new reporting requirements on the number of U.S. persons who have been swept up in Section 702 collection. Furthermore, the bill increases the maximum penalty for those who improperly remove and mishandle classified information from 1 year to 5 years.
Finally, I’d like to say something about the current political climate in which we operate. The American people expect that any surveillance measure be structured in a way that both protects them from international threats and ensures that their communications’ privacy is secured from unfounded government intrusion. We on this Committee agree and have carefully crafted this bill to ensure that both our national security and our civil liberties are protected because government power always has the potential for abuse. While I understand that some will want us to restrict this surveillance authority further, and others disagree with any restrictions on our intelligence authorities, the ultimate goal here is to reauthorize a very important program with meaningful and responsible reforms. If we do not protect this careful compromise, all sides of this debate risk losing. It is the case at this moment, more than at any time I can recall, that we must not risk submitting to the old adage of making the “perfect” the enemy of the “good.”
FISA Section 702 is set to expire at the end of the year, and the USA Liberty Act is the best legislative solution to preserve this important national security tool, while also providing for much needed reforms to protect our valued civil liberties. I urge the Committee to support this meaningful and responsible legislation. Thank you to Ranking Member Conyers and his staff for their leadership, to the Chairman of the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, Mr. Sensenbrenner, for his guidance and historic leadership on surveillance matters, and to the Ranking Member of the subcommittee, Ms. Jackson Lee, for her leadership on these important issues. I also want to thank all original cosponsors of this legislation for their commitment to passing a bill that achieves a critical balance for national security and civil liberties’ protections.
Thank you, and I now yield to the Ranking Member, John Conyers, for his opening statement.