[Ninong]

President George W. Bush,
The White House
1600 Pennsylvania Ave., NW
Washington, DC 20500

Dear Mr. President:

The Preamble to our Constitution states that one of our highest duties as public officials is to "provide for the common defence." As an elected Member of Congress, a senior Member of the House Armed Services Committee, and Chairman of the House Permanent Select Committee on Intelligence, I work everyday to ensure that our defense and intelligence capabilities remain strong in the face of serious threats to our national security.

Because I care so deeply about protecting our country, I take strong offense to your suggestion in recent days that the country will be vulnerable to terrorist attack unless Congress immediately enacts legislation giving you broader powers to conduct warrantless surveillance of Americans' communications and provides legal immunity for telecommunications companies that participated in the Administration's warrantless surveillance program.

Today, the National Security Agency (NSA) has authority to conduct surveillance in at least three different ways, all of which provide strong capability to monitor the communications of possible terrorists.

First, NSA can use its authority under Executive Order 12333 to conduct surveillance abroad of any known or suspected terrorist. There is no requirement for a warrant. There is no requirement for probable cause. Most of NSA's collection occurs under this authority.

Second, NSA can use its authority under the Protect America Act, enacted last August, to conduct surveillance here in the U.S of any foreign target. This authority does not "expire" on Saturday, as you have stated. Under the PAA, orders authorizing surveillance may last for one year – until at least August 2008. These orders may cover every terrorist group without limitation. If a new member of the group is identified, or if a new phone number or email address is identified, the NSA may add it to the existing orders, and surveillance can begin immediately. We will not "go dark."

Third, in the remote possibility that a new terrorist organization emerges that we have never previously identified, the NSA could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to monitor those communications. Since its establishment nearly 30 years ago, the FISA Court has approved nearly every application for a warrant from the Department of Justice. In an emergency, NSA or the Federal Bureau of Investigation (FBI) may begin surveillance immediately, and a FISA Court order does not have to be obtained for three days. The former head of FISA operations for the Department of Justice has testified publicly that emergency authorization may be granted in a matter of minutes.

As you know, the 1978 FISA law, which has been modernized and updated numerous times since 9/11, was instrumental in disrupting the terrorist plot in Germany last summer. Those who say that FISA is outdated do not understand the strength of this important tool.

If our nation is left vulnerable in the coming months, it will not be because we don't have enough domestic spying powers. It will be because your Administration has not done enough to defeat terrorist organizations – including al Qaeda -- that have gained strength since 9/11. We do not have nearly enough linguists to translate the reams of information we currently collect. We do not have enough intelligence officers who can penetrate the hardest targets, such as al Qaeda. We have surged so many intelligence resources into Iraq that we have taken our eye off the ball in Afghanistan and Pakistan. As a result, you have allowed al Qaeda to reconstitute itself on your watch.

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Congress has not been sitting on its hands. Last November, the House passed responsible legislation to authorize the NSA to conduct surveillance of foreign terrorists and to provide clarity and legal protection to our private sector partners who assist in that surveillance.

The proper course is now to conference the House bill with the Senate bill that was passed on Tuesday. There are significant differences between these two bills and a conference, in regular order, is the appropriate mechanism to resolve the differences between these two bills. I urge you, Mr. President, to put partisanship aside and allow Republicans in Congress to arrive at a compromise that will protect America and protect our Constitution.

I, for one, do not intend to back down – not to the terrorists and not to anyone, including a President, who wants Americans to cower in fear.

We are a strong nation. We cannot allow ourselves to be scared into suspending the Constitution. If we do that, we might as well call the terrorists and tell them that they have won.


Sincerely,

Silvestre Reyes
Member of Congress
Chairman, House Permanent Select Committee on Intelligence

[Ninong]

Scare Tactics and Our Surveillance Bill


By Jay Rockefeller, Patrick Leahy, Silvestre Reyes and John Conyers
Monday, February 25, 2008; A15

Nothing is more important to the American people than our safety and our freedom. As the chairmen of the House and Senate intelligence and judiciary committees, we have an enormous responsibility to protect both.

Unfortunately, instead of working with Congress to achieve the best policies to keep our country safe, once again President Bush has resorted to scare tactics and political games.

In November, the House passed legislation to give U.S. intelligence agencies strong tools to intercept terrorist communications that transit the United States, while ensuring that Americans' private communications are not swept up by the government in violation of the Fourth Amendment.

Almost two weeks ago, the Senate passed similar legislation. The Senate bill also contains a provision to grant retroactive legal immunity to telecommunications companies that assisted the executive branch in conducting surveillance programs after the Sept. 11, 2001, attacks.

While the four of us may have our differences on what language a final bill should contain, we agree on several points.

First, our country did not "go dark" on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.

As Assistant Attorney General Kenneth Wainstein acknowledged while speaking to reporters on Feb. 14, "the directives are in force for a year, and with the expiration of the PAA, the directives that are in force remain in force until the end of that year. . . . [W]e'll be able to continue doing surveillance based on those directives."

If President Bush truly believed that the expiration of the Protect America Act caused a danger, he would not have refused our offer of an extension.

In the remote possibility that a terrorist organization that we have never previously identified emerges, the National Security Agency could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to track its communications. Since Congress passed FISA in 1978, the court governing the law's use has approved nearly 23,000 warrant applications and rejected only five. In an emergency, the NSA or FBI can begin surveillance immediately and a FISA court order does not have to be obtained for three days.

When U.S. agencies provided critical intelligence to our German allies to disrupt a terrorist plot last summer, we relied on FISA authorities.

Those who say that FISA is outdated do not appreciate the strength of this powerful tool.

So what's behind the president's "sky is falling" rhetoric?

It is clear that he and his Republican allies, desperate to distract attention from the economy and other policy failures, are trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack.

But if our nation were to suddenly become vulnerable, it would not be because we don't have sufficient domestic surveillance powers. It would be because the Bush administration has done too little to defeat al-Qaeda, which has reconstituted itself in Pakistan and gained strength throughout the world. Many of our intelligence assets are being used to fight in Iraq instead of taking on Osama bin Laden and the al-Qaeda organization that attacked us on Sept. 11 and that wants to attack us again.

The president may try to change the topic by talking about surveillance laws, but we aren't buying it.

We are motivated to pass legislation governing surveillance because we believe this activity must be carefully regulated to protect Americans' constitutional rights. Companies that provide lawful assistance to the government in surveillance activities should be legally protected for doing so.

We are already working to reconcile the House and Senate bills and hope that our Republican colleagues will join us in the coming weeks to craft final, bipartisan legislation. A key objective of our effort is to build support for a law that gives our intelligence professionals not only the tools they need but also confidence that the legislation they will be implementing has the broad support of Congress and the American public.

If the president thinks he can use this as a wedge issue to divide Democrats, he is wrong. We are united in our determination to produce responsible legislation that will protect America and protect our Constitution.

Jay Rockefeller, Patrick Leahy, Silvestre Reyes and John Conyers are chairmen, respectively, of the Senate Select Committee on Intelligence, the Senate Judiciary Committee, the House Permanent Select Committee on Intelligence and the House Judiciary Committee.