[Congressional Record Volume 151, Number 100 (Thursday, July 21, 2005)]
[House]
[Pages H6221-H6269]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
The SPEAKER pro tempore. Pursuant to House Resolution 369 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 3199.
The Chair designates the gentleman from Florida (Mr. Putnam) as
chairman of the Committee of the Whole, and requests the gentleman from
Oregon (Mr. Walden) to assume the chair temporarily.
{time} 1220
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 3199) to extend and modify authorities needed to combat
terrorism, and for other purposes, with Mr. Walden of Oregon (Acting
Chairman) in the chair.
The Clerk read the title of the bill.
The Acting CHAIRMAN. Pursuant to the rule, the bill is considered as
having been read the first time.
General debate shall not exceed 2 hours, with 1 hour and 30 minutes
equally divided and controlled by the chairman and ranking minority
member of the Committee on the Judiciary and 30 minutes equally divided
and controlled by the chairman and ranking minority member of the
Permanent Select Committee on Intelligence.
The gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman
from Michigan (Mr. Conyers) each will control 45 minutes and the
gentleman from Michigan (Mr. Hoekstra) and the gentlewoman from
California (Ms. Harman) each will control 15 minutes.
The Chair recognizes the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume, and I rise in strong support of H.R. 3199, the USA PATRIOT and
Terrorism Prevention Reauthorization Act of 2005.
Mr. Chairman, the attacks of September 11, 2001, tragically affirmed
the urgency of updating America's laws to address the clear and present
danger presented by international terrorism. On that day, foreign
terrorists maliciously and without provocation attacked the United
States, murdered thousands of our citizens, and destroyed symbols of
our freedom in a failed effort to break the spirit and resolve of the
American people.
We must also recall that these terrorists exploited historic
divisions between America's law enforcement and intelligence
communities that had limited the dissemination of vital and timely
information and increased America's vulnerability to terrorist attack.
In the wake of the 9/11 atrocities, broad bipartisan majorities in
both Houses of Congress passed the PATRIOT Act that lowered the wall
that prohibited our law enforcement and intelligence communities from
effectively sharing information, and to enhance investigatory tools
necessary to assess, detect, and prevent future terrorist attacks. U.S.
law enforcement and intelligence authorities have utilized the expanded
information sharing provisions contained in the PATRIOT Act to gain
critical knowledge of the attentions of foreign-based terrorists before
they occur, while preempting gathering terrorist threats at home.
While the PATRIOT Act and other anti-terrorism initiatives have
helped avert additional attacks on our soil, that threat has not
receded. Exactly 2 weeks ago, innocent citizens in London were murdered
in a series of ruthlessly coordinated attacks. Earlier today, it
appears, the London subway system came under renewed attack. Last year,
the Madrid bombings brought unprecedented terror to the people of
Spain, and ongoing terrorist operations around the globe demonstrate
the imperative for continued vigilance.
When the House Committee on the Judiciary reported the PATRIOT Act in
October 2001, I pledged to rigorously examine its implementation and
the conduct of the war against terrorism. In my words and in my actions
as committee Chair, I have maintained this commitment and emphasized
the importance of better protecting our citizenry from terrorist attack
while, at the same time preserving the values and liberties that
distinguish us as Americans. The legislation we consider today reflects
this careful balance.
H.R. 3199 is based upon 4 years of comprehensive bipartisan oversight
consisting of hearing testimony, Inspector General reports, briefings,
and oversight letters. Since April of this year alone, the committee
has received testimony from 35 witnesses during 12 hearings on the
PATRIOT Act. This extensive hearing and oversight record has
demonstrated that the PATRIOT Act has been an effective tool against
terrorists and other criminals. Of no less importance, and
notwithstanding the vague and general suspicion expressed by some of
its detractors, the record shows that there is no evidence whatsoever
that the PATRIOT Act has been abused to violate Americans' civil
liberties. None whatsoever.
To further allay concerns expressed by some, this bill makes
important revisions to section 215 of the PATRIOT Act, which pertains
to business records obtained through the Foreign Intelligence
Surveillance Act, or FISA. I would note that section 215 is probably
the most misunderstood and deliberately misrepresented provision of the
PATRIOT Act. H.R. 3199 clarifies that the information likely to be
obtained through a FISA warrant must relate to foreign intelligence
information not concerning a U.S. person, or must be information
pertaining to an ongoing international terrorism investigation or
clandestine intelligence activities. The legislation also explicitly
clarifies that a section 215 order will issue only ``if the judge finds
that the requirements have been met,'' and provides a judicial review
process to authorize the court to set aside a section 215 order that
has been challenged. Contrary to the unfounded allegations of some,
there is no evidence that a single section 215 order has been served on
any library since the PATRIOT Act was passed in October of 2001.
The Committee on the Judiciary last week conducted a nearly 12-hour
markup of this legislation, at which 43 amendments were offered and
debated. The reported version of this legislation extends for 10 years
the sunset on sections 206 and 215 of the PATRIOT Act.
Section 206 pertains to roving wiretaps under FISA. This crucial
provision updates the law to reflect contemporary communications
technology by making a suspected terrorist, rather than a
communications device, the proper target of a wiretap. This sunset
provision was approved by the committee by an overwhelming bipartisan
vote of 26 to 2. However, while the legislation sets expiration dates
on certain provisions of the PATRIOT Act, congressional oversight of
the entire PATRIOT Act must be perpetual.
Let me conclude with the following point: For too long opponents of
the PATRIOT Act have transformed it into a grossly distorted caricature
that bears no relationship whatsoever to the legislation itself. The
PATRIOT Act has been misused by some as a springboard to launch
limitless allegations that are not only unsubstantiated but are false
and irresponsible. Our constituents expect and deserve substantive
consideration of this vital issue, and I hope that today's debate
reflects the bipartisan seriousness that this issue demands.
Mr. Chairman, the security of the American people is the most solemn
responsibility of all entrusted to the Congress. Passage of the USA
PATRIOT and Terrorism Prevention Reauthorization Act of 2005 is vital
to maintaining the post-9/11 law enforcement intelligence reforms that
have reduced America's vulnerability to terrorist attack. We must never
return to the pre-
[[Page H6222]]
9/11 mindset that ignores the painful lessons of that day as well as
the tragic experiences of our friends and allies.
I would urge my colleagues on both sides of the aisle to support this
vital legislation.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Ladies and gentlemen of the House, let me say from the
outset that every Member of this body wants to make sure that law
enforcement officials have the tools they need to protect the American
people from terrorism. I also know that all of us want to make sure
that we protect our civil liberties and freedoms as we fight terrorists
anywhere in the world and in this country as well.
{time} 1230
I support the majority of the 166 provisions of the PATRIOT Act. In
fact, in the first original PATRIOT Act, I helped write many of them in
a version of the bill that passed the Committee on the Judiciary 36-0,
but a bill we never saw after it left the Committee on the Judiciary.
It was replaced in the middle of the night in the Committee on Rules.
I did it, I wrote the provisions because I believe as technology
changes, our laws need to keep up and change as well. I believe our law
enforcement officials need to be able to talk with one another and
connect the dots to prevent terrorist attacks.
In some sense this is not really about the PATRIOT Act, the debate
that is going on here, or even most of the 16 provisions scheduled to
sunset this year. It is about four areas that are subject to abuse and
need greater checks and balances, and I would like to suggest what they
are.
First, the business records, 215, allows the FBI to obtain any record
considered relevant to an investigation. This includes library books,
medical records, and bookstore purchases. The provision has been
difficult to oversee since targets of FBI investigations under the law
are not permitted to tell anybody about it, even their lawyer. The
Department of Justice and the chairman of the Committee on the
Judiciary say that this provision has never been used on libraries and
bookstores. However, the American Library Association has reported that
more than 200 requests for library records have been made since
September 11.
Now, concerning national security letters, the second very serious
issue here, which allows the FBI to obtain financial, telephone,
Internet and other records relevant to any intelligence investigation
without judicial approval. Again, this is for any intelligence
investigation, which means it does not even have to deal with
terrorism, or even a crime. Like section 215, recipients are forever
prevented from telling anyone they received a letter under penalty of
law. Thank goodness a New York Federal court struck down this provision
as unconstitutional. Shame on an administration that keeps using it
anyway.
Third, under section 213, the government can sneak and peek into your
business, your office, your car, your home, anywhere, even if there is
no emergency. This means the government can break into your home and
search it without telling you. It was not in the bill originally
reported by the Committee on the Judiciary and was slipped in by the
Department of Justice or the administration when the bill was first
written a few years back. This provision has been subject to
exceedingly widespread abuse. It has been used more than 240 times, and
it has been delayed sometimes for over a year before anybody can be
told what happened, that they were broken into, they were burglarized,
they had things taken out of their home.
Worse yet, only 10 percent of these uses had anything to do with
terrorism, which is the whole purpose of the PATRIOT Act.
Finally, it is clear to me that we need to have additional sunsets in
this legislation. What is wrong with sunsets? That is why we are here,
because the bill is being sunsetted in more than a dozen ways. If we
have learned anything over the last 4 years, the only thing that makes
the administration give us any information on oversight on the use of
these new powers was the sunset provision.
We have also learned of abuses during our oversight that has led to
us making modifications. Given this history, it simply makes no sense
to make these provisions permanent or near permanent. And 10 years is
not a sunset; 10 years is semi-permanent.
The lessons of September 11 and London, and even today in London, are
that if we allow law enforcement to do their work free of political
interference, give them adequate resources and modern technologies, we
can protect our citizens without intruding on our liberties.
We all fight terrorism, but we need to fight it the right way
consistent with our Constitution and in a manner that serves as a model
for the rest of the world. I believe that the committee-passed
legislation that is on the floor right now does not meet that test. As
such, it does not warrant passage until it is corrected.
Mr. Chairman, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from Texas (Mr. Smith).
Mr. SMITH of Texas. Mr. Chairman, I thank the gentleman for yielding
me this time.
Mr. Chairman, I strongly support the USA PATRIOT Act of 2005. The
continued threat of a terrorist attack in the United States and this
month's terrorist attacks in London remind us of the need to prevent,
investigate, and prosecute all terrorist acts.
The PATRIOT Act was a long-overdue measure that enhanced our ability
to collect crucial intelligence information on the global terrorist
network. It passed by a margin of 98-1 in the Senate and by a margin of
357-66 in the House.
Even the American Civil Liberties Union last April said, ``Most of
the voluminous PATRIOT Act is actually unobjectionable from a civil
liberties point of view. The law makes important changes that give law
enforcement agents the tools they need to protect against terrorist
attacks.''
Many of the tools of the act provided to law enforcement officials
have been used for decades to fight organized crime and drug dealers.
They have been reviewed and approved by the courts and found
constitutional. For instance, prior to the PATRIOT Act, the FBI could
get a wiretap to investigate the Mafia, but they could not get one to
investigate terrorists. Well, what is good for the Mob should be good
for terrorists.
America is a safer country today than before September 11 because of
the PATRIOT Act. Giving the Department of Justice, the Central
Intelligence Agency, and the FBI information-sharing powers enabled law
enforcement officials to disrupt terrorist cells in New York, Oregon,
Florida, and Virginia. Since September 11, 2001, over 200 people
charged with crimes stemming from international terrorist
investigations have been convicted or have pled guilty. The PATRIOT Act
helped also investigate and apprehend an individual who in Texas
threatened to attack a mosque.
Mr. Chairman, our success in preventing another attack on the
American homeland would have been much less likely without the PATRIOT
Act. Law enforcement and intelligence agencies must continue to have
the powers they need to protect all Americans.
Mr. CONYERS. Mr. Chairman, I yield 4\1/2\ minutes to the gentleman
from Virginia (Mr. Boucher), a distinguished member of the Committee on
the Judiciary.
(Mr. BOUCHER asked and was given permission to revise and extend his
remarks.)
Mr. BOUCHER. Mr. Chairman, I thank the gentleman for yielding me this
time and commend him on his previous eloquent statement.
I rise this afternoon in opposition to this measure which would
perpetuate the invasions of civil liberties that are embedded within
the 4-year-old PATRIOT Act. I have deep concerns about many provisions
of the original law, such as the use of the appropriately named sneak-
and-peek warrants that allow secret searches of homes with delayed
notification to the homeowner that a search has occurred. The secret
search can be in almost any kind of investigation, and the notification
to the
[[Page H6223]]
person whose premises are searched can be delayed almost indefinitely.
But I am going to focus my remarks this afternoon on the two
provisions of the original law which I think cause the deepest civil
liberties invasion and which the measure before us does not, in my
opinion, appropriately reform.
In my view, the single most troubling provision confers on law
enforcement the ability to use so-called national security letters. No
prior review by a court is required. The FBI can issue a national
security letter and then demand records from a business or from another
record custodian. There is no requirement that the object of the search
be an agent of a foreign power. The only requirement is that the
seizure be relevant to a terrorism investigation, but there is no
procedure by which a court would make that finding of relevance before
the seizure occurs. Frankly, there is no meaningful way through the use
of this provision to ensure that privacy and fundamental civil
liberties are protected. It is the unilateral ability of law
enforcement to issue these letters and seize records without prior
court review that I find to be the most troubling.
I would note that one Federal court has found the section 505
national security letter provisions to be an abridgement of both the
first and the fourth amendments to the U.S. Constitution. The bill
before us does nothing to address this egregious provision or limit its
use in any way.
Secondly, I strongly oppose the PATRIOT Act's grant to law
enforcement of the ability to go to the Foreign Intelligence
Surveillance Court and obtain an order permitting the seizure of
library, bookstore, bank, or medical records of a person who is not
even the subject of an investigation. Moreover, the library or other
institution is barred from telling its customer that his records have
been seized. All law enforcement has to do is say to the court that
there is a reasonable expectation that foreign intelligence about a
non-U.S. person will be obtained or that the information is relevant to
an ongoing investigation and the records can be seized. Virtually
anyone could have their records seized. You could be sitting in a
concert near someone who is a suspected foreign agent, and potentially
your records could be seized. You would never learn that seizure has
occurred.
While the custodian of the records could challenge the seizure, the
library, the hospital, the bookstore, or the bank in possession of
those records has a lot less incentive to spend resources hiring a
lawyer in order to resist the seizure than would the person whose
records are about to be seized; but that person, the real party of
interest, never knows that the seizure is about to occur.
The House recently voted by a margin of 238-187 to bar enforcement of
this overly broad provision, but the bill before us with minor changes
perpetuates it and, I think, in an inappropriate way.
Mr. Chairman, there is no need to short-circuit our normal processes
that are designed to protect privacy and protect civil liberties. Law
enforcement could go before a court and present evidence of probable
cause that a crime has been committed, and by that showing obtain the
records that it needs in both of these situations. These powers
conferred by the original PATRIOT Act under sections 505 and 515 are
designed primarily for the convenience of law enforcement, but mere
convenience should not be a reason for a deep abridgement of privacy
and individual rights.
The protection of our freedoms does not require surrender of our
long-held civil liberties. For these reasons, I oppose the measure
before us, and I urge others to do so.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1 minute.
The gentleman from Virginia (Mr. Boucher) is sincere in his
opposition to this bill, and I respect that. However, neither the
national security letter scheme nor the delayed notification scheme
were authorized for the first time by the PATRIOT Act. That was
legislation that was in place prior to October 2001 when the original
PATRIOT Act was passed and signed into law by the President.
What the PATRIOT Act did in both national security letters as well as
in delayed notification warrants was simply to extend to anti-terrorism
investigations authorities that already existed and up until that time
had been found constitutional in investigations such as Mafia
investigations, racketeering investigations, and drug-trafficking
investigations.
{time} 1245
So these complaints were not caused by the PATRIOT Act. They were
caused by existing legislation, and we should deal with that, not in
the context of this bill but elsewhere.
Mr. Chairman, I yield 2 minutes to the gentleman from North Carolina
(Mr. Coble).
Mr. COBLE. Mr. Chairman, I thank the gentleman from Wisconsin for
yielding me this time.
Mr. Chairman, I will reiterate what has been previously said this
date about the PATRIOT Act, and I do so for emphasis.
The first point I want to emphasize is the assurance that the House
Committee on the Judiciary and the Crime, Terrorism, and Homeland
Security Subcommittee did not give the PATRIOT Act a mere wink and a
nod. We, in fact, hosted 12 public hearings; three before the full
committee, nine before our subcommittee. It was exhaustive, it was
deliberate, it was thorough. So this matter was not accelerated and
rushed through by any means, as some people seem to believe.
I mentioned during the rule debate earlier, Mr. Chairman, about a
constituent of mine who complained about the PATRIOT Act but he had no
specifics. He said he had heard it was bad, but he could give me no
specifics where in any way civil liberties had been compromised or
abused.
There has been some talk about sunsetting provisions of the act; 216
and 206 will, in fact, be sunsetted. But in these two instances, Mr.
Chairman, there was no evidence of abuse or any violation at all, but
these two were sunsetted because, among the other sections in the act,
these two seemed to attract most of the controversy. So these are the
two that stood out controversially but, I reiterate, still no evidence
of abuse.
I think we in the Committee on the Judiciary have done a thorough job
of exhausting and deliberating a very, very important act, and I
believe that one reason why we have not been attacked subsequently from
9/11 is because of the presence of the PATRIOT Act. We expanded the
provisions under which law enforcement and public safety officers must
operate and must stay within, and as a result we are better for it.
Mr. CONYERS. Mr. Chairman, I yield 4 minutes to the gentleman from
New York (Mr. Nadler), who has headed the Constitution Subcommittee.
Mr. NADLER. Mr. Chairman, war has been declared on this country by
the Islamic terrorists, and we must protect the citizens of this
country. The PATRIOT Act was an attempt in some respects to do this.
But before commenting on the specifics of the PATRIOT Act, I would be
derelict if I did not mention that the majority party in this House and
the Bush administration have really been derelict by not dealing more
directly with the threats that we face. The biggest threats we face are
sabotage, bombings in our mass transit systems, sabotage of our
chemical farms, our nuclear plants that could kill thousands of people,
yet we do not see funds to deal with this.
It is easy to be demagogic. The Bush administration does not want to
throw money at the problem; they want to throw rhetoric at the problem.
So we have the PATRIOT Act. I wish we had real measures to protect our
mass transit systems, to protect our vulnerable infrastructure, to
protect us against what happened in London again this morning.
The PATRIOT Act was an attempt to do several things, some of which
were very necessary. Breaking down the wall between intelligence and
police information was very necessary and was in the PATRIOT Act and is
not before us today because most of the PATRIOT Act is not before us
today. Most of the PATRIOT Act is permanentized. It is permanent law.
But when we are expanding police powers and when we are expanding
surveillance powers, the power of government to pry into the private
affairs, the books, the records, the medical histories of individual
citizens, sometimes it may be necessary
[[Page H6224]]
for security to do so. But it endangers liberty, and that has to be
balanced. We should always be nervous about expanding police and
surveillance powers, and that is one of the greatest weaknesses of this
bill.
We were only able to pass the PATRIOT Act 4 years ago because most,
not all but most of the sections of the PATRIOT Act that expanded the
powers of the police to pry into the privacy of ordinary Americans, to
go into their home, into their papers, into their Internet records,
their telephone records, their bank records, were sunsetted.
So what? What is the point of sunsetting? It means that every 4 years
at least Congress has to look at that again, has to revisit it, has to
have oversight and determine whether those powers are being abused. Mr.
Sensenbrenner says they are not being abused. He knows. The Justice
Department said so. They said, We are not abusing it. Glad to hear it.
But every 4 years we should have to look into it and ask are these
powers being abused? Should it be fine tuned? Should they be narrowed?
Have we made the right balance between security and liberty?
This bill eliminates those sunsets, except for two, which it makes
10-year sunsets.
We have had 4 years since the PATRIOT Act was enacted. We did not do
any oversight in this House until 6 months ago. Why? Because of the
sunset. If it had not been for the sunsetting, we would not have had
the oversight. We must have that oversight and we should have had all
of these things sunsetted, continued another 4 years, another 4 years.
Secondly, Members have heard about section 215. The powers granted in
section 215 of the PATRIOT Act, which is hardly modified by this bill,
to look into anybody's library and medical records in secret and not
tell anybody that they have done so, not tell the person whose records
are pried into is a very disturbing invasion of liberty, and amendments
to limit it were not made in order. Section 505 of the bill, which
enables any FBI agent, any FBI field office director, to issue a
national security letter to let them go and see their Internet records,
their phone records, and so forth without even going to a judge and
telling them it is relevant to a national security investigation is
wrong, and it was declared unconstitutional by a federal court. The
amendments to make this constitutional, to say that they have to at
least allow for judicial review and to sunset the gag order were not
made in order.
The CHAIRMAN. The gentleman's time has expired.
Mr. NADLER. This should be defeated for those reasons because it is
not a proper balance between security and liberty.
Announcement by the Chairman
The CHAIRMAN. Members are reminded to heed the gavel.
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from California (Mr. Daniel E. Lungren).
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I thank the
gentleman for yielding me this time.
This is an important day for us today, not just because of the
explosions that have taken place in London today or those that took
place several weeks ago, but rather because of 9/11 and our response to
that wake-up call of the war on terrorism.
The Preamble to the United States Constitution posits that both the
provision for the common defense and the need to secure the blessings
of liberty are central to the constitutional order.
Freedom presumes security. The converse is equally true. In the
delicate balance of these important interests. Our concern for liberty
must not discount the consequences of a failure to keep Americans
secure from another terrorist attack. While it is important to avoid
hyperbole on such a serious matter, the very nature of American life
and the traditional regard for liberty could itself be threatened. It
is, therefore, imperative that principles that we take an oath to
uphold not be reduced to empty platitudes. Rather, they must be applied
to the facts which confront us in the war on terrorism.
The 12 oversight hearings conducted by the Committee on the Judiciary
produced no evidence of abuse relating to the act itself. I hope other
Members have taken the time to go to the Permanent Select Committee on
Intelligence, as I have, to review the documents that are filed
pursuant to the PATRIOT Act by the Justice Department, to see for
themselves whether or not they have found any evidence of abuse. I did
that. Those are available to any Member who wants to go over there as
long as they make arrangements. And I keep hearing time and time again
that, even though the Justice Department has not found any abuses, they
are out there. It reminds me of those people who used to find
communists under every bed: We know they are out there, we know they
are there somewhere.
And I have heard on the floor people reciting: Well, the IG for the
Justice Department has not found them, we have not found them, but we
know they are there. Certainly our debate should be above that.
The provisions contained in the chairman's bill and the amendments
adopted by the Committee on the Judiciary provide additional
protections against any possible abuse in the future. The sunset of
section 206 dealing with roving wiretaps and section 215, which has
been referred to, was adopted by the full committee. The bill
specifically requires that the government meet a relevant standard when
applying for a court order for records of U.S. citizens under 215.
Remember, it is an application to a court for an order. We have put in
the statute the relevant standard, which was the practice we were told,
but people wanted more. We have put that in there.
The chairman's bill, coupled with an amendment adopted by the full
committee, explicitly provides that the subject of a court order under
section 215 would have the right to consult with an attorney with
respect to the order. The amendment at committee clarified that a
recipient of such an order could disclose this information not only to
comply with the order but to challenge it.
On these and other parts of this bill, we have done the work in the
committee to deal with the problems that have been suggested.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, to the gentleman from California (Mr. Daniel E.
Lungren), I am preparing a list of 10 instances of where there have
been abuses that have been reported.
Abuses of the USA Patriot Act
(Prepared by the House Judiciary Democratic Staff)
While some have suggested that no abuses have occurred
under the USA PATRIOT Act, the simple truth is that it
appears that abuses have indeed occurred. The following are
examples:
section 215, seizure of records or ``any tangible thing''
Since 9/11, the American Library Association found that
libraries have received over 200 formal and informal requests
for materials, including 49 requests from federal officers.
section 218, coordinating criminal and intelligence investigations
Abuse in the Brandon Mayfield case: The FBI used Section
218 to secretly break into his house, download the contents
of four computer drives, take DNA evidence and take 355
digital photographs. Though the FBI admits Mr. Mayfield is
innocent, they still will not divulge the secret court order
to him, or allow him to defend himself in court. It is
unclear how the search was for any reason but to find
evidence incriminating Mr. Mayfield.
section 805, material support for terrorism
Section 805 has been found UNCONSTITUTIONAL by three
separate courts. The 9th Circuit found the provision
prohibiting ``personnel'' and ``training'' was overly vague.
The Central California District Court found the provisions
prohibiting ``expert advice and assistance'' was overly
vague. A New York District Court found the provisions
prohibiting ``personnel'' and acting as a ``quasi-employee''
overly vague. In each instance, the courts found COMPLETELY
LEGAL ACTIVITIES would violate Section 805.
Abuse in Lynne Stewart case: A District Court threw out
charges of materials support against Lynne Stewart, holding
that the law makes ANY action by a lawyer in support of an
alleged foreign terrorist client illegal, including providing
legal advice.
Abuse in Sami Al-Hussayen case: A federal jury in Idaho
acquitted University of Idaho graduate student Al-Hussayen on
all charges of providing material support for a terrorist
organization by running a website for the Islamic Assembly of
North America. Importantly, this group is NOT on the list of
foreign terrorist organizations, and the links
[[Page H6225]]
posted by Al-Hussayen were available on the GOVERNMENT'S own
website.
section 213, ``sneak and peek'' searches
In a July 5, 2005 letter to Rep. Bobby Scott, DOJ said
Section 213 had been used 153 times as of 1/31/2005; ONLY
EIGHTEEN (11.8%) uses involved terrorism investigations.
Thus, ALMOST 90% of ``sneak and peek'' warrants were used in
ordinary criminal investigations: 97 warrants were used in
drug investigations and 38 were used in other criminal
investigations.
Abuse of delays: In April 2005, DOJ said 90-day delays are
common, and that delays in notification have lasted for as
long as 180 days. In May 2003, DOJ said its longest delay was
90 days.
Abuse of delays for ``unspecified times'': Delays may be
sought for an unspecified duration, including until the end
of the investigation. In one such case, the delay lasted 406
DAYS.
Abuse of delay extensions: In May 2003, DOJ reported it had
asked for 248 delay notification extensions, including
multiple extension requests for a single warrant, and that
the courts had granted EVERY SINGLE REQUEST.
Abuse of ``catch-all provision'': In an April 4, 2005
letter to Chairman Sensenbrenner, DOJ reports 92 out of 108
(85%) sneak and peek warrants were justified because
notification would ``seriously jeopardize the investigation''
and in 28 instances that was the sole ground for delaying
notice.
section 505, national security letters
Section 505 has been found UNCONSTITUTIONAL. The Southern
District of New York held Section 505 violated the 1st and
4th Amendments. Section 505 places a prior restraint on free
speech with its gag order, and it prevents due process by
barring the recipient's access to the courts. Specifically,
an Internet Service Provider was unconstitutionally coerced
to divulge information about e-mail activity and web surfing
on its system, and the ISP was then gagged from disclosing
this abuse to the public.
section 411, revocation of visas
Abuse in Tariq Ramadan case: Professor Ramadan's visa to
teach at Notre Dame was revoked upon charges that he
supported terrorism; Notre Dame, Scotland Yard, and Swiss
intelligence all agree the charges were groundless.
Abuse in Dora Maria Tellez case: Nicaraguan Professor
Tellez was denied her visa to teach at Harvard due to her
association with the Sandinistas in the 1980s, where she
helped to overthrow a brutal dictator whom the U.S.
supported.
protection mass transit
Oddly, New York law enforcement has begun using the
provision of the PATRIOT Act that protects against attacks on
mass transit to forcefully kick homeless persons out of the
New York train stations.
Mr. CONYERS. Mr. Chairman, I yield 4 minutes to the gentleman from
Virginia (Mr. Scott), a subcommittee ranking member.
Mr. SCOTT of Virginia. Mr. Chairman, I thank the gentleman for
yielding me this time.
Mr. Chairman, we live in a democracy where we respect checks and
balances. The PATRIOT Act is part of a pattern of lacking checks and
balances. Military tribunals, not part of the PATRIOT Act but part of a
pattern of reduced checks and balances. Military tribunals were
presented with no public trials, no presumption of innocence, no guilt
beyond a reasonable doubt. Secret evidence could be used, no judicial
review.
Part of that pattern is the enemy combatant where the administration
designates someone as an enemy combatant, can arrest them and hold them
indefinitely without charges, never having an opportunity to contest
the allegations.
We have seen material witnesses, people arrested under the material
witness laws, held indefinitely, no charges.
That is the context that we are considering the PATRIOT Act. Those
are not in the PATRIOT Act, but we are considering the PATRIOT Act in
that context.
We considered a bill on the same day of the second bombing in Great
Britain with no money for port security, no money to secure our rails
or bus transportation, no money for first responders.
Mr. Chairman, I oppose this bill, frankly not so much for what is in
the bill but for what is not in the bill, what we are not going to do
today. We can have plenty of privacy without threatening security, and
we missed an opportunity to require standards for wiretaps and ``sneak
and peak'' searches. We missed an opportunity to require probable cause
of a crime before invading people's privacy. We missed the opportunity
to limit these provisions and extraordinary powers to terrorism.
Ninety percent of the ``sneak and peak'' searches have nothing to do
with terrorism. Remember that when the government invades one's
privacy, it is not robots and computers; it is government employees who
may be neighbors looking at one's medical records, listening to their
private conversations, sneaking and peaking into their homes without
their knowledge or consent. The PATRIOT Act gives broad expansive
powers to government agents to invade privacy.
The major check on any abuse in the act has been the sunset
provisions. Provisions will expire if they are abused. During our
deliberations, we got a lot of cooperation on those provisions that are
sunsetting. When asked information on those, we got the information.
Some of it came in right before the hearing, but because of the sunset
we got a lot of cooperation. Because of the sunset we found no abuses
in the libraries. That is because of the sunset. Although government
agencies have gone to at least 200 libraries for information, that has
not been abused because they know if they abused it they would lose the
benefit of that provision.
{time} 1300
Medical records have not been abused. There has not been any
unnecessary sharing of sensitive information of a personal nature. We
have not run criminal investigations without probable cause using the
provisions of the PATRIOT Act. They could have, because of the broad
discretion in the bill, but they did not, because of the sunset.
Without the sunset provision, the abuse could take place. Fourteen of
the 16 sunset provisions are removed, and the two that are left, 10-
year sunsets, which will get us through this administration, clean
through the next Presidential term and most of the way through the
next.
Mr. Chairman, we need to defeat this bill, go back to the Committee
on the Judiciary and establish a much better piece of legislation that
will protect our privacy and ensure our safety.
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman
from Florida (Mr. Feeney).
Mr. FEENEY. Mr. Chairman, I thank the distinguished chairman for
yielding me time.
Mr. Chairman, I note that since the
9/11 attacks, in part we all know due to the PATRIOT Act, there have
been no new attacks on America. I also think Americans ought to know
there is a bookstore in London, in the Leeds section, called the Iqra
Bookstore; and among the books that Iqra Learning Center sells are
extremist Muslim materials. We now believe that three out of four of
the terrorists that attacked London 2 weeks ago and killed 56 people
visited frequently this bookstore. If the British authorities had known
about the possible link and had a 215 clause, the main clause being
attacked by the opponents of the PATRIOT Act, perhaps there would be 56
people alive today.
So all the scare tactics can be done away with, all the hysterical
allegations. Every American needs to know that this 215, which has been
referred to as the library provision, nowhere mentions libraries. But
what 215 does do is say a Federal judge must make findings before any
warrant would ever be issued. This can only affect non-Americans in the
first place, or Americans would only be affected if there is an ongoing
terrorism or intelligence investigation.
Mr. Chairman, every American needs to know that unless there is an
ongoing terror or intelligence investigation, unless a judge makes a
decision, no American can ever be affected.
To the extent that we want to create safe harbors, either in
bookstores or libraries or anywhere else by eliminating 215, we ought
to be candid with Americans. We ought to be candid about the fact that
we expect and are going to sit back as London-type bombings take place
on our subways and bus systems.
We may not be able to prevent the next attack, but as long as
Americans' liberties are protected by a judge ahead of time, as long as
this is a reasonable provision affecting only non-Americans or during
an intelligence or ongoing terrorism investigation, it is absolutely
appropriate. I would not be doing my duty as a Congressman to not fight
for 215 to be reenacted. We have added some protections. Everybody
[[Page H6226]]
who receives one of these warrants is guaranteed to see a lawyer, and,
if they want to, challenge the warrant.
Mr. CONYERS. Mr. Chairman, I yield 4 minutes to the gentlewoman from
California (Ms. Zoe Lofgren), a distinguished member of the Committee
on the Judiciary.
Ms. ZOE LOFGREN of California. Mr. Chairman, after 9/11, I worked on
the drafting of the PATRIOT Act in the committee and in the weekend
drafting session, and I voted for the act on the floor. I think it is
important to know that most of what is in the PATRIOT Act is not
actually before us today. It is only the 16 provisions that are so-
called sunsetted, which means that we need to review them and renew
them, that are actually before the House today.
First and foremost, as the Justice Department said in their letter to
me today, the most important thing in the PATRIOT Act is to help remove
the legal barriers that prevented law enforcement and intelligence
officers from sharing information so they could, so-called, ``connect
the dots.'' That is important. There are other important things in the
act.
I think it is worth noting that there are some things that disturb
Americans that are happening in the United States relative to the
arrest of American citizens and the holding of American citizens
without charge, without access to counsel; but they have nothing
whatsoever to do with the PATRIOT Act. They are not in the PATRIOT Act,
no matter how concerned we might be about them.
I believe, however, that even though there are important components
to the PATRIOT Act, there are some things that deserve more attention
and more fine-tuning than they have received in this bill.
For example, section 505 of the act grants law enforcement the
authority to issue national security letters, which are essentially
administrative subpoenas, for all sorts of personal records about
anyone without judicial oversight. These records include telephone and
Internet records, financial documents and consumer records.
In addition, we enhanced this section in subsequent legislation to
ensure that even more records could be subpoenaed from travel agencies,
pawn brokers, casinos, car dealers and more; but all of this is without
oversight of a court.
Prior to the act, national security letters could only be used to get
records when there was reason to believe that the subject of the record
was an agent of a foreign power. Not only did the PATRIOT Act remove
the requirement that the subject of the record is a foreign power; it
lowered the standard by which those records could be obtained to the
relevancy standard.
We have not had meaningful oversight, in my opinion, on this
provision of the act. Assuming that law enforcement does need the
ability to get some of these records, and I do not dispute that, we do
need to have some standards in place. As has been mentioned by the
gentleman from Virginia (Mr. Boucher), one court has already struck
down this section of the act as violative of the Constitution.
We know from our inquiry to the Justice Department that this
provision has been used hundreds of times. We got six pages back of
redacted records, but we really do not know the full impact; and we
need to know more than we do today before we allow this sweeping tool
to be renewed.
I also want to mention section 215 of the act. I believe that it may
be important to obtain certain records, as has been outlined. But,
again, we need to have a standard that is beyond relevancy.
So the question here really is about balance. We need to prevent
terrorism, we all agree on that; but we also need to protect and defend
the Constitution that has served us so well. So I would urge that we
have the oversight that we will need by having some sunsets, and
particularly taking a look at the national security letter. We do not
need to violate our Constitution to keep our country safe.
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from Indiana (Mr. Pence).
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Chairman, I thank the distinguished chairman for
yielding me time, and especially I rise to thank the gentleman from
Wisconsin (Chairman Sensenbrenner) for his tireless efforts on behalf
of the security and the liberty of the American people in developing
this reauthorizing legislation.
Today in London we have seen yet again the work of terrorists on the
soil of a freedom-loving people. The explosions in that city today,
while less lethal than a few weeks ago, follow the deadly attacks that
took place on July 7, and the anguish in London is a vivid reminder of
why we cannot relent in taking the steps necessary to defend our
homeland from a present terrorist threat.
We all lived through September 11. I was here at the Capitol that
day. I saw the evil of our enemies written in the smoke rising above
the Pentagon. And we are reminded yet today that their desire to do
such violence in our homeland and in the homeland of our allies is
real.
The PATRIOT Act is essential to our continued success in the war on
terror here at home. In the last 4 years under the PATRIOT Act, we have
seen a great increase in the ability of law enforcement officials to
investigate and track terrorists. For example, aided by provisions of
the PATRIOT Act, law enforcement officials in Ohio were able to arrest
Iyman Faris, an Ohio truck driver who authorities said plotted attacks
on the Brooklyn Bridge and a central Ohio shopping mall. In 2003, he
pleaded guilty to charges of aiding and abetting terrorism and
conspiracy, acknowledging that he had met with Osama bin Laden in the
year 2000 at an al Qaeda training camp and then was provided assistance
by al Qaeda. He is currently serving a 20-year prison sentence.
While 16 provisions of the PATRIOT Act are set to expire at the end
of this year, the threat of terrorism to our families and our cities
will not. Therefore, the USA PATRIOT and Terrorism Prevention
Reauthorization Act of 2005 is as necessary today as the PATRIOT Act
was when it was originally signed into law in October of 2001.
This reauthorization legislation does make permanent 14 of the 16
sections from the original PATRIOT Act that were set to expire this
year. But under the bill, those sections of the act that have caused
the greatest concern in the hearts of many millions of Americans are
set to sunset, sections 206 and 215, within 10 years, thanks to the
leadership of this committee and of this Congress.
The concerns that have been raised about abuses simply have not been
borne out. With over 4 years of oversight hearings and six Department
of Justice Inspector General reports, there is no evidence of abuse
under the PATRIOT Act.
I know what the people of London are feeling today. I felt it that
day, September 11, and my heart and my prayers go out to them. I am
absolutely convinced that what we have done in this country in a
bipartisan way has contributed mightily to the fact that there has not
been another major terrorist event in our Nation since that awful day.
The PATRIOT Act and the elements which we will reauthorize today are
central to the ongoing victory in the war on terror, and I urge its
adoption.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 4 minutes to the
gentleman from California (Mr. Berman), a senior member of the
Committee on the Judiciary.
Mr. BERMAN. Mr. Chairman, I thank our wonderful ranking member for
yielding me this time.
Mr. Chairman, I voted for the PATRIOT Act in 2001. I abstained in the
Committee on the Judiciary this year because I was hoping that some of
my concerns could be addressed through a rule that would allow some of
these issues to be brought to the floor. But I am very disappointed to
say that the rule that was adopted for this very important bill is
designed to look like it is fair, because it allows a number of
amendments, but those amendments are either so sweeping that they will
never get anywhere near and should not get a majority of the House to
vote for them, or they tinker on the edges of some critical issues.
There are, to my way of thinking, two critical things that need to be
[[Page H6227]]
done; and this rule does not allow them to be done. One is addressing
the issue of sunsets.
The chairman bemoans the fact that out in the Nation so many people
have such a misunderstanding of what the PATRIOT Act does or does not
do. He may feel it is because of the bad motives of the people who talk
about it. I would suggest it comes from this fundamental conflict
between our desire for enhanced security and our love and commitment
for continued liberty.
So people read about detentions of people without being indicted or
without any deportation proceedings against them and wonder what is
going on; and he is right, many of the things we have read about have
nothing whatsoever to do with the PATRIOT Act. But part of the reason
why the chairman can say we had such rigorous oversight, 10 hearings on
this subject, continued letters from the chair and the ranking member
pushing for information from the Justice Department, is because of the
sunsets.
The failure of the rule to make the sunsets in order is a tremendous
failure, not that all of them need to be reenacted, but on key sections
at a time that is relevant for what the American people want, which is
within the next 4 or 5 years there should be a chance to have those
provisions sunsetted.
I want to get to just as fundamental an issue, to my way of thinking
and that is the issue of the standards for secret orders from FISA
courts that allow our law enforcement agencies to pursue terrorist
investigations and break up terrorist cells.
Prior to the PATRIOT Act, and even under the SAFE Act, we have a
standard which does not give law enforcement enough tools to gather the
information through a carefully developed investigation to find out who
the future terrorists are, who the people who might be planning
terrorist attacks are.
Under the existing law, you have much too broad a standard. You are
allowing orders that are not based on criminal information to be issued
by FISA courts, required to be issued by FISA courts, allowing any kind
of tangible records to be seized, whether or not they are pertaining to
a specific person, if it is connected with, or, in the case of the base
bill here, relevant to a terrorist investigation.
{time} 1315
An amendment that the gentleman from Massachusetts (Mr. Delahunt) and
the gentlewoman from California (Ms. Harman) and I proposed the
Committee on Rules did not allow to come into the rule which would have
provided the proper balance. It would have dealt with the limitations
that are imposed on law enforcement by too restrictive a standard and,
at the same time, clarify that even if it has not yet been misused, it
is wrong to provide such a broad standard that records can be swept up
that have no connection whatsoever with any relevant target of any
terrorist investigation.
The Senate Committee on the Judiciary this morning unanimously passed
the standard that we see on this chart. The standard says, if the
target of the FISA order or the national security letter is an agent of
a foreign power or is in contact with or known to an agent of a foreign
power, a definition which deals with all the hypotheticals provided by
my friend, the gentleman from California (Mr. Daniel E. Lungren), in
criticizing the SAFE Act and pre-PATRIOT Act standard, it provides
every hypothetical created that I have heard about with the ability to
be pursued under FISA orders. Why were we not allowed to vote on this?
Why would the Senate Committee on the Judiciary unanimously pass that
sensible correction in the PATRIOT Act and this body not be even
allowed to debate and vote on it?
For these reasons, I am going to be forced to vote ``no'' on this
bill for the lack of opportunity to sunset key provisions like the
lone-wolf provision, like the issue of national security letters to
provide a forcing mechanism for oversight and for our failure to deal
with the overly broad standard in the existing law and in the base
bill. I hope when it comes back from the conference committee, that we
will have a more balanced product that I will be able to support.
Mr. SENSENBRENNER. Mr. Chairman, I yield 1 minute to the gentleman
from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Chairman, I thank the gentleman for yielding me
this time.
Mr. Chairman, I sit here and listen to this debate, and I have been
through a number of the 12-or-so hearings that we have had in the
Committee on the Judiciary on the PATRIOT Act; and I want to compliment
this Congress, this bipartisan Congress, that met almost with a sense
of urgency and almost a sense of emergency to write this PATRIOT Act
just 3-plus years ago.
And throughout all of those hearings, we needed to put security in
place, we needed to be able to access information. One of the standards
was, why can we not access information in an international terrorist
investigation as we can in a criminal investigation? We set higher
standards here in this Congress rather than lower standards and, still,
the debate comes back.
But I am astonished and amazed and pleased and in admiration by the
work done by this Congress to put this language in this PATRIOT Act
that has withstood all legitimate criticism. It has protected people's
rights. There is not a name of an individual who had their rights
violated by the PATRIOT Act. We have had the hearings, and we have had
serious deliberation. I hope we have a serious consideration of these
amendments and final passage of a very good PATRIOT Act.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the distinguished
gentlewoman from Texas (Ms. Jackson-Lee).
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Chairman, I hope we can characterize
this debate in the manner that it should be, particularly as we rise in
the backdrop of the tragedy of London, England.
Might I say that even though we would have preferred, many of us as
Democrats, a lengthier time for debate in committee, I want to thank
the gentleman from Michigan (Mr. Conyers) and the gentleman from
Wisconsin (Mr. Sensenbrenner) for the ongoing debate and allowing for
amendments over a period of time to discuss the PATRIOT Act.
It should be commented on that this is not a definition of
patriotism, of who is more patriotic than the next person, for the
underlying bill exists. But there also should be some concerns about
limiting overreach and overbroadness, with Americans understanding one
of the issues that we are debating today, and that is the very premise
of civil liberties juxtaposed against the responsibility of fighting
the war on terror.
I would have hoped my colleagues could have fought the war on terror
by enhancing and making sure that the agencies responsible for sharing
intelligence are really doing that. We find that that is not the case.
Whether it is the FBI, the CIA, or other counterterrorism groups, they
can do a better job. That certainly helps to stop terrorist acts.
Then, I would have hoped my colleagues would have supported an
increased funding, which has not been done by the majority, on rail
security and port security and, of course, the idea of insuring our
buses and other public transportation modes. These are also components
of making sure that we are safe.
But the reason why we raise the question today about the PATRIOT Act
is that 14 provisions are being made permanent. Mr. Chairman, even
though it is a different story, the Voter Rights Act in 1965, which
goes to the core of our democracy, was sunsetted; and it has to be
reauthorized. We only argue that it is important to reauthorize or to
sunset so that we can have these debates, so that the American people
can understand the limitation of their rights or the enhancement of
their rights.
For example, I think my colleagues would be troubled by the fact that
we know that the FBI could get any tangible record by a rubber stamp by
what we call FISA and that the showing would only be relevance. I have
signed probable cause warrants as a judge, and you have to ask hard
questions when a policeman comes in late at night to go into your home.
We also know that these items can be used against Americans, not just
a foreign power, or the national security letters that the FBI can get
financial, telephone, Internet, and consumer
[[Page H6228]]
goods records relevant to intelligence investigations, not just against
agents of foreign powers, but against Americans. Or what about the
sneak-and-peek provision that allows someone to come into your home and
take anything, of course, called search and seizure, without notice,
suggesting that it is involved in an investigation, and most of you
would not know, most of America would not know that this is not limited
to terrorism. But it is far-reaching; it could be anyone.
So the question on debate today, I hope that we can center it around
the question of restraint, but yet be vigorous in our fight for the war
on terror. I hope that we will have that opportunity, and I hope as
well that in the amendment that I offer that we will be able to say
that if you are impacted by a terrorist act, that you can sue and
enforce your civil judgement, and I hope to have mutual support on
that. 3
Mr. Chairman, I join my many colleagues, many victims of terrorism,
and many victims of racial and religious profiling in opposing this
legislation, H.R. 3199, for several reasons. First, we never have been
given the facts necessary to fully evaluate the operation of the
underlying bill, the USA PATRIOT Act. Second, there are numerous
provisions in both the expiring and other sections of the PATRIOT Act
that have little to do with combating terrorism, intrude on our privacy
and civil liberties, and have been subject to repeated abuse and misuse
by the Justice Department. Third, the legislation does nothing to
address the many unilateral civil rights and civil liberties abuses by
the administration since the September 11 attacks. Finally, the bill
does not provide law enforcement with any additional real and
meaningful tools necessary to help our Nation prevail in the war
against terrorism. Since 2002, 389 communities and 7 States have passed
resolutions opposing parts of the PATRIOT Act, representing over 62
million people. Additionally, numerous groups ranging the political
spectrum have come forward to oppose certain sections of the PATRIOT
Act and to demand that Congress conduct more oversight on its use,
including the American Civil Liberties Union, American Conservative
Union, American Immigration Lawyers Association, American Library
Association, Center for Constitutional Rights, Center for Democracy and
Technology, Common Cause, Free Congress Foundation, Gun Owners of
America, Lawyers' Committee for Civil Rights, National Association for
the Advancement of Colored People (NAACP), National Association of
Criminal Defense Lawyers, People for the American Way, and numerous
groups concerned about immigrants' rights. I sit as Ranking Democrat on
the Subcommittee on Immigration, Border Security, and Claims. Of
particular concern to me are a number of immigration-related provisions
that cast such a broad net to allow for the detention and deportation
of people engaging in innocent associational activity and
constitutionally protected speech and that permit the indefinite
detention of immigrants and non-citizens who are not terrorists.
Among these troubling provisions are those that:
Authorize the Attorney General (AG) to arrest and detain non-citizens
based on mere suspicion, and require that they remain in detention
``irrespective of any relief they may be eligible for or granted.'' (In
order to grant someone relief from deportation, an immigration judge
must find that the person is not a terrorist, a criminal, or someone
who has engaged in fraud or misrepresentation.) When relief from
deportation is granted, no person should be subject to continued
detention based merely on the Attorney General's unproven suspicions.
Require the AG to bring charges against a person who has been
arrested and detained as a ``certified'' terrorist suspect within 7
days, but the law does not require that those charges be based on
terrorism-related offenses. As a result, an alien can be treated as a
terrorist suspect despite being charged with only a minor immigration
violation, and may never have his or her day in court to prove
otherwise.
Make material support for groups that have not been officially
designated as ``terrorist organizations'' a deportable offense. Under
this law, people who make innocent donations to charitable
organizations that are secretly tied to terrorist activities would be
presumed guilty unless they can prove they are innocent. Restrictions
on material support should be limited to those organizations that have
officially been designated terrorist organizations.
Deny legal permanent residents readmission to the U.S. based solely
on speech protected by the First Amendment. The laws punish those who
``endorse,'' ``espouse,'' or ``persuade others to support terrorist
activity or terrorist organizations.'' Rather than prohibiting speech
that includes violence or criminal activity, these new grounds of
inadmissibility punish speech that ``undermines the United States'
efforts to reduce or eliminate terrorist activity.'' This language is
unconstitutionally vague and overbroad, and will undeniably have a
chilling effect on constitutionally protected speech.
Authorize the AG and the Secretary of State to designate domestic
groups as terrorist organizations and block any noncitizen who belongs
to them from entering the country. Under this provision, the mere
payment of membership dues is a deportable offense. This vague and
overly broad language constitutes guilt by association. Our laws should
punish people who commit crimes, not punish people based on their
beliefs or associations.
In addition, the current administration has taken some deeply
troubling steps since September 11. Along with supporting the USA
PATRIOT Act, it has initiated new policies and practices that negate
fundamental due process protections and jeopardize basic civil
liberties for non-citizens in the United States. These constitutionally
dubious initiatives undermine our historical commitment to the fair
treatment of every individual before the law and do not enhance our
security. Issued without Congressional consultation or approval, these
new measures include regulations that increase secrecy, limit
accountability, and erode important due process principles that set our
Nation apart from other counties.
I co-sponsored the Civil Liberties Restoration Act (CLRA),
reintroduced from the 108th Congress by Representatives Howard Berman
(D-CA) and William Delahunt (D-MA), that seeks to roll back some of
these egregious post-9/11 policies and to strike an appropriate balance
between security needs and liberty interests. The CLRA would secure due
process protections and civil liberties for non-citizens in the U.S.,
enhance the effectiveness of our nation's enforcement activities,
restore the confidence of immigrant communities in the fairness of our
Government, and facilitate our efforts at promoting human rights and
democracy around the world.
While every step must be taken to protect the American public from
further terrorist acts, our government must not trample on the
Constitution in the process and on those basic rights and protections
that make American democracy so unique.
My ``safe havens'' amendment that was made in order by the Committee
on Rules relates to the civil forfeiture provision of 18 U.S.C. 981 and
would add a section that would allow civil plaintiffs to attach
judgments to collect compensory damages for which a terrorist
organization has been adjudged liable.
It seeks to allow victims of terrorism who obtain civil judgment for
damages caused in connection with the acts to attach foreign or
domestic assets held by the United States Government under 18 U.S.C.
981(G). Section 981(G) calls for the forfeiture of all assets, foreign
or domestic, of any individual, entity, or organization that has
engaged in planning or perpetrating any act of domestic or
international terrorism against the United States, citizens or
residents of the United States.
The legislation, H.R. 3199, as drafted, fails to deal with the
current limitation on the ability to enforce civil judgments by victims
and family members of victims of terrorist offenses. There are several
examples of how the current Administration has sought to bar victims
from satisfying judgments obtained against the government of Iran, for
example.
In the Sobero case, a U.S. national was beheaded by Abu Sayyaf, an
Al-Qaeda affiliate, leaving his children fatherless. The Administration
responded to this incident by sending 1,000 Special Forces officers to
track down the perpetrators, and the eldest child of the victim was
invited to the State of the Union Address. Abu Sayyaf's funds have been
seized and are held by the U.S. Treasury at this time. The family of
the victim should have access to those funds, at the very least, at the
President's discretion.
Similarly, the Administration barred the Iran hostages that were held
from 1979-1981 from satisfying their judgment against Iran. In 2000,
the party filed a suit against Iran under the terrorist State exception
to the Foreign Sovereign Immunity Act. While a federal district court
held Iran to be liable, the U.S. Government intervened and argued that
the cause should be dismissed because Iran had not been designated a
terrorist state at the time of the hostage incident and because of the
Algiers Accords--that led to the release of the hostages, which
required the U.S. to bar the adjudication of suits arising from the
incident. As a result, those hostages received no compensation for
their suffering.
Similarly, American servicemen who were harmed in a Libyan sponsored
bombing of the La Belle disco in Germany were obstructed from obtaining
justice for the terrorist acts they suffered. While victims of the
attack pursued settlement of their claims against the Libyan
government, the Administration lifted sanctions against Libya without
requiring as a condition the determination of all claims of American
[[Page H6229]]
victims of terrorism. As a result of this action, Libya abandoned all
talks with the claimants. Furthermore, because Libya was no longer
considered a state sponsor of terrorism, the American servicemen and
women and their families were left without recourse to obtain justice.
The La Belle victims received no compensation for their suffering.
In addition, a group of American prisoners who were tortured in Iraq
during the Persian Gulf war were barred from collecting their judgment
from the Iraqi government. Although the 17 veterans won their case in
the District Court of the District of Columbia, the Administration
argued that the Iraqi assets should remain frozen in a U.S. bank
account to aid in the reconstruction of Iraq. Claiming that the
judgment should be overturned, the Administration deems that rebuilding
Iraq is more important than recompensing the suffering of fighter
pilots who, during the 12-year imprisonment, suffered beatings, burns,
and threats of dismemberment.
Finally, the World Trade Center victims were barred from obtaining
judgment against the Iraqi government. In their claim against the Iraqi
government, the victims were awarded $64 million against Iraq in
connection with the September 2001 attacks. However, they were rebuffed
in their efforts to attach the vested Iraqi assets. While the judgment
was sound, the Second Circuit Court of Appeals affirmed the lower
court's finding that the Iraqi assets, now transferred to the U.S.
Treasury, were protected by U.S. sovereign immunity and were
unavailable for judicial attachment.
While the PATRIOT Act may not deserve all of the ridicule that is
heaped against it, there is little doubt that the legislation has been
repeatedly and seriously misused by the Justice Department. Consider
the following:
It's been used more than 150 times to secretly search an individual's
home, with nearly 90 percent of those cases having had nothing to do
with terrorism.
It was used against Brandon Mayfield, an innocent Muslim American, to
tap his phones, seize his property, copy his computer, spy on his
children, and take his DNA, all without his knowledge.
It's been used to deny, on account of his political beliefs, the
admission to the United States of a Swiss citizen and prominent Muslim
Scholar to teach at the Notre Dame University.
It's been used to unconstitutionally coerce an internet service
provider to divulge information about e-mail activity and web surfing
on its system, and then to gag the provider from even disclosing the
abuse to the public.
Because of gag restrictions, we will never know how many times its
been used to obtain reading records from library and book stores, but
we do know that libraries have been solicited by the Department of
Justice--voluntarily or under threat of the PATRIOT Act--for reader
information on more than 200 occasions since September 11.
It's been used to charge, detain and prosecute a Muslim student in
Idaho for posting Internet website links to objectionable materials,
even though the same links were available on the U.S. Government's web
site.
Even worse than the PATRIOT Act has been the unilateral abuse of
power by the Administration. Since September 11, our government has
detained and verbally and physically abused thousands of immigrants
without time limit, for unknown and unspecified reasons, and target
tens of thousands of Arab-Americans for intensive interrogations and
immigration screenings. All this serves to accomplish is to alienate
Muslim and Arab Americans--the key groups to fighting terrorism in our
country--who see a Justice Department that has institutionalized racial
and ethnic profiling, without the benefit of a single terrorism
conviction.
Nor it is helpful when our government condones the torture of
prisoners at home and abroad, authorizes the monitoring of mosques and
religious sties without any indication of criminal activity, and
detains scores of individuals as material witnesses because it does not
have evidence to indict them. This makes our citizens less safe not
more safe, and undermines our role as a beacon of democracy and
freedom.
Right now, H.R. 3199 is the most appropriate and timely vehicle in
which to address this issue and allow U.S. victims of terrorism to
obtain justice from terrorist-supporting or terrorist-housing nations.
Mr. Chairman, I oppose this legislation and ask my colleagues work to
negotiate real fixes to the sunsetted provisions.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume, and I yield to the gentleman from Michigan (Mr. Schwarz).
Mr. SCHWARZ of Michigan. Mr. Chairman, I thank the chairman for this
opportunity to address the PATRIOT Act. We must especially make sure
our law enforcement and intelligence agencies have the resources they
need to arrest, detain, and interrogate those who would do us harm
before the deadly acts are committed.
I am very cognizant of the concerns brought to me by many of my
constituents in Michigan regarding the PATRIOT Act. They have a concern
which I believe we all share, that any legislation we pass to combat
and prevent terror should not infringe upon the rights we cherish as
Americans, the very same freedoms the terrorists themselves seek to
destroy.
I appreciate the gentleman letting me inquire about these provisions
in the bill that you have reported out of committee.
Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, I am pleased
that this bill and the USA PATRIOT Act will continue to protect civil
liberties, while also providing law enforcement the tools they need to
fight terrorists intent on harming Americans.
I yield further to the gentleman from Michigan.
Mr. SCHWARZ of Michigan. Mr. Chairman, section 215 of the PATRIOT Act
pertains to the government's abilities to gain access to what we
commonly refer to as business records, records compiled by a business
or an institution pertaining to a customer or visitor to that entity.
This provision has come to be known as the ``library provision''
because many librarians and civil libertarians are concerned that this
provision of the PATRIOT Act could authorize the government to pour
through the library records of everyday private citizens.
Now, it is my understanding that your version of the bill has added
protections to ensure that law-abiding citizens and residents of the
United States do not see their cherished civil liberties violated.
Specifically, the bill states that no search can be conducted unless, I
repeat, unless a Federal judge impaneled at the Foreign Intelligence
Surveillance Court makes a finding that the information likely to be
obtained concerns an ongoing investigation; repeat, an ongoing
investigation to prevent international terrorism, and that that
investigation is geared toward gathering foreign intelligence.
Mr. SENSENBRENNER. Mr. Chairman, reclaiming my time, yes, that is an
accurate reading of the bill.
I further yield to the gentleman from Michigan (Mr. Schwarz).
Mr. SCHWARZ of Michigan. Mr. Chairman, I thank the gentleman. Is it
also the case that the recipient of such an order, such as a business
or video store, is allowed to consult a lawyer and to contest these
orders, and that judges are authorized to review such challenge? In
other words, we are not devolving to the executive branch powers of the
judicial branch?
Mr. SENSENBRENNER. Mr. Chairman, further reclaiming my time, again,
that is an accurate reading of the bill. I further yield to the
gentleman from Michigan.
Mr. SCHWARZ of Michigan. Mr. Chairman, I thank the gentleman for his
time. I have, and I hope the American people have, an accurate
understanding of the safeguards put in place by the USA PATRIOT Act.
Mr. SENSENBRENNER. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Delahunt), a former prosecutor and a member of the
Committee on the Judiciary.
Mr. DELAHUNT. Mr. Chairman, I want to comment and express my
appreciation for the remarks of the gentleman from Iowa (Mr. King) when
he suggested that this has been a good process. We have significant
disagreements, and they are healthy disagreements, I would add.
But I think he made the point. There is no one, no Democrat and no
Republican who wants to reconstruct that metaphorical wall that
prevented the sharing of information. I do not know of anyone on either
side. And that was the key and the linchpin, I would suggest, of the
success of the PATRIOT Act.
Now, some have suggested that there has been no abuse discovered by
the Department of Justice, and I will accept that premise. But I would
also put forth that the reality of the sunsets were an encouragement on
the part of the Department of Justice to ensure full compliance with
the law as it was then written. If you will, one could argue that it
served as a deterrence,
[[Page H6230]]
that it encouraged good behavior; and that is why some of us here on
this side of the aisle are so passionate about the issue of sunsets.
It is my understanding that this morning in the Senate Committee on
the Judiciary, there were a number of sunsets on various provisions
that were approved, and they were full-year sunsets. I dare say, if
various amendments relative to sunsets had been allowed and made in
order, this debate could have been cut in half in terms of the time.
I also want to speak to the issue of library records. My good friend
and colleague on the committee, the gentleman from Florida (Mr.
Feeney), talked about some using the library provision, if you will, as
a red herring. Well, the reality is that library records under section
215 can be gleaned under section 215. Yes, according to the Attorney
General, it has never been used, which just leads me to ask the
question, well, why do we need it? But, yes, it ought to be a concern.
I would further suggest that in terms of if there is no concern about
libraries, if it is a red herring, why does the first amendment that we
will consider that was made in order have to do with the issue?
Mr. SENSENBRENNER. Mr. Chairman, I yield 1\1/2\ minutes to the
gentlewoman from Florida (Ms. Ginny Brown-Waite).
Ms. GINNY BROWN-WAITE of Florida. Mr. Chairman, I certainly want to
thank the gentleman from Wisconsin (Chairman Sensenbrenner) for putting
together this excellent extension and reauthorization of the USA
PATRIOT Act.
Mr. Chairman, America faced a new kind of enemy on September 11, one
that mercilessly attacked civilians on our own shores. In response, the
Congress, I was not here at the time, passed the PATRIOT Act to give
law enforcement agents appropriate tools to fight the new war on
terror.
Today, we have a great opportunity to send a strong message of
support for several provisions of this bill which would have expired on
December 1.
I specifically want to mention the library section. For some reason,
section 215 has come to be known as that.
{time} 1330
Actually, it is one that allows law enforcement officers to gain
access to business records. Why would we not want to have library
records and bookstore records be available if there is a suspected
terrorist? By doing so, we would only be making bookstores and
libraries sanctuaries for these terrorists. The purpose of this
legislation was when it was originally created and now as we extend it
to protect Americans. We cannot afford to make libraries and bookstores
havens for those bent on harming U.S. citizens.
Opponents have waged a campaign of misinformation. Recently, some
Members on the other side have actually admitted that it has not been
abused. We want to make sure that Americans are protected. For that
reason, I fully support the reauthorization of the expiring PATRIOT
Act, and I thank the gentleman from Wisconsin (Chairman Sensenbrenner)
for his work on this issue.
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentleman
from Texas (Mr. Gohmert).
Mr. GOHMERT. Mr. Chairman, I too rise in support of this bill. We
have had some great debate, 11 hearings, and I appreciate my friend the
gentleman from Massachusetts' point about Section 215, but the
gentleman from Florida (Mr. Feeney) is right. I mean, library records
are being used as a red herring. We have seen over and over that
libraries have been used by terrorists and this will help address that.
The thing is so far that provision of 215 has not been used with regard
to libraries. But if a terrorist is using that information, as a former
judge, I would not hesitate if the information were there, raising
probable cause. But there are safeguards in 215. There is a court.
There is a judge reviewing.
I was terribly concerned about the right to an attorney not being in
there. That is being amended to include that. I was concerned about not
having a provision for appealing that power under 215. That has been
added and amended. And so we are coming to a great bill here, and it
has come about through great debate, back and forth.
And I would also point out though, with regard to the London bombings
and the further activity today, you know, our hearts and prayers go out
to our friends across the ocean. But we cannot lose sight of the fact
either, we have not had one yet here, not since 9/11. And if you are in
a position to review top secret records, you will see that this has
been used effectively.
And as far as 215 and the passion my friend, the gentleman from
Massachusetts (Mr. Delahunt), had about we have got to have a sunset,
good news. The sunset is in here for 206 and 215. So I am proud to rise
in support. I have had great concerns about some areas. They are being
addressed. We do have some sunsets to provide some protection, and I am
proud that this administration has not abused any of these until we can
get these holes filled.
The Acting CHAIRMAN (Mr. Sweeney). The Chair will advise Members that
the gentleman from Wisconsin (Mr. Sensenbrenner) has 16 minutes
remaining. The gentleman from Michigan (Mr. Conyers) has 11 minutes
remaining.
Mr. SENSENBRENNER. Mr. Chairman, I yield 2 minutes to the gentlewoman
from Michigan (Mrs. Miller).
Mrs. MILLER of Michigan. Mr. Chairman, I rise today in very strong
support of the renewal of the USA PATRIOT Act. These changes that were
enacted in response to the horrific terrorist attacks on our Nation of
September 11, 2001 provided critical tools to our law enforcement in
bringing the terrorists to justice and to stopping future attacks, and
the result of this law cannot be disputed. Worldwide we have captured
or killed nearly two-thirds of the al Qaeda's top leadership. We have
broken up terrorist cells in Buffalo, in Seattle, in Portland, Northern
Virginia and in Detroit, my home State of Michigan.
These tools have been critical in gathering knowledge on the
activities and the targets of the terrorists. These tools have assisted
in dismantling the terrorist financial network. And as I meet with
constituents in my district they are continually saying what are we
doing to help fight the terrorists?
However, I have never heard from one man or woman in my district who
has said that their constitutional rights have been violated by any
aspect of the PATRIOT Act. And while I care deeply about protecting the
civil rights of law abiding Americans, I do not care one iota about the
civil rights of terrorists bent on destroying our way of life.
Just yesterday over 300 Members of this House voted for an amendment
that supported the capture and the detention and the interrogation of
international terrorists.
Mr. Chairman, today we face a new type of enemy, an enemy who preys
on the innocent, an enemy who lives in the shadows, an enemy whose
tactics are the tactics of cowards. And as we saw in London on July 11
and as we are seeing again today, the terrorists are still out there
targeting the murder of the innocent. And in fact I will predict that
other countries will follow the lead of America and what we are doing
on the floor of this House today as they enact similar protections for
their citizens against these murderers. And now is not the time to take
away tools that law enforcement needs to protect us. Now is the time to
send a message to the terrorists that the we are not backing down from
the fight.
I urge my colleagues to support this legislation.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the gentlewoman from
California (Ms. Waters), a distinguished member of the Judiciary
Committee.
Ms. WATERS. Mr. Chairman, I rise in strong opposition to H.R. 3199,
the U.S. PATRIOT and Terrorism Prevention Reauthorization Act. This act
grants the government overbroad and even unconstitutional powers that
have not been adequately addressed.
The PATRIOT Act is misleading American citizens and causing them to
forfeit their civil liberties in the interest of what has become a
political war on terrorism. At the same time, the President's war on
terrorism fails to fund protection for our transportation systems, our
ports and, still today, uninspected cargo is being placed in the belly
of the airplanes of all of our airlines.
Yet we continue in this act to violate the privacy of our citizens
with section 505, the National Security Letters section of the PATRIOT
Act, which allows
[[Page H6231]]
law enforcement to demand detailed information about an individual's
private records without judicial review, without the individual ever
being suspected of a crime, without a requirement that law enforcement
notify the individual that they are the subject of an investigation.
Furthermore, this section contains an automatic permanent gag order
on the recipient of a national security letter, not even allowing the
recipient to consult with an attorney. And this act is very confusing.
In one section of the law, 215, they can get an attorney. In section
505 they cannot. I do not know what we are doing here today.
Mr. Chairman, this power represents a clear violation of the fourth
amendment against unreasonable search and seizure, as well as
threatening speech protected under the first amendment. In fact, a U.S.
district judge struck down section 505 in a case involving the
government's collection of sensitive customer records from Internet
service providers without judicial oversight. The judge found that the
government seizure of these records constituted an unreasonable search
and seizure under the fourth amendment, and found the broad gag
provision to be an unconstitutional prior restraint on free speech.
To address this, I proposed an amendment that would have provided the
recipients of national security letters that would allow them to
consult with their attorneys and any person that was necessary to
produce the required records. This amendment would not have greatly
changed the real meaning of section 505. It was simply a common sense
amendment that would have provided some legal recourse and balance for
the recipients of national security letters. However, the amendment was
not made in order.
Mr. Chairman, what makes this country so great is our respect and
protection of individual rights and civil liberties, and we must
continue to provide adequate safeguards and protection to these rights.
While I agree that our national security is a top concern, we must find
the appropriate balance.
Mr. SENSENBRENNER. Mr. Chairman, I yield 3 minutes to the gentleman
from Texas (Mr. McCaul).
Mr. McCAUL of Texas. Mr. Chairman, I want to thank the gentleman from
Wisconsin (Mr. Sensenbrenner) for his leadership on this important
legislation, and I rise today in support of this bill.
I served in the Justice Department before and after 9/11. I led the
Department's counterterrorism efforts in the United States Attorney's
Office in the State of Texas. I worked with the Joint Terrorism Task
Forces fighting this war on terror in the trenches. I know firsthand
that this PATRIOT Act provides the necessary tools to win this war on
terror at home.
Significantly, the PATRIOT Act tore down the wall between the
criminal division and the intelligence side of the house. Prior to this
it was dysfunctional. The left hand literally did not know what the
right was doing. The
9/11 Commission reported this wall may have contributed to 9/11. An FBI
agent testified that efforts to conduct a criminal investigation into
two of the hijackers were blocked due to concerns over the wall.
Frustrated, he wrote to the FBI headquarters and he said, some day
someone will die. And wall or not, the public will not understand why
we were not more effective at throwing every resource we had at certain
problems. Let us hope that the national security law unit will then
stand behind their decisions, especially since the biggest threat to us
now is Osama Bin Laden.
Today, thanks to the PATRIOT Act, this wall has come down. It helps
us connect the dots by removing the legal barriers that prevented law
enforcement and the Intelligence Community from sharing information.
But the PATRIOT Act provides many other tools for law enforcement in
this war on terrorism. It updates the law to the technology of today.
The PATRIOT Act also takes laws which have long applied in drug cases
and organized crime cases and applies them to the terrorists, such as
the roving wiretaps, such as the delayed notification for searches. It
makes no sense for us to apply these laws only in drug cases and not in
the most important cases affecting our national security, cases
involving terrorists. And contrary to critics' assertions, the Justice
Department cannot do anything without court supervision. The U.S.
PATRIOT Act does not abrogate the role played by the judiciary in the
oversight of the activities of Federal law enforcement.
And while we are talking about libraries, let us not forget al Qaeda
operative Mohammed Babar who used a computer in a library and when
asked after he was arrested why, he said because the libraries will
scrub the hard drives.
I can envision no bigger national security mistake than to go back to
the way things were. We owe it to the citizens of this country to
reauthorize the PATRIOT Act, for if we do not and another terrorist
attack occurs on our shores we will surely all be held accountable.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the gentleman from
North Carolina (Mr. Watt), the chairman of the Congressional Black
Caucus and a distinguished member of the Judiciary Committee.
Mr. WATT. Mr. Chairman, I thank the gentleman for yielding time.
Mr. Chairman, I suspect that the American people do not realize just
how much the process of legislating is about reacting to events that
take place around us. When something like Enron happens, we react to
that. When accounting scandals happen, we react to it. When the events
of 9/11 occurred, we obviously reacted to those events. And quite often
when we react, we are looking for an appropriate new balance that takes
into account some outrageous activity that took place.
And so when we passed the PATRIOT Act originally, our effort was to
try to find a new security balance for people here in our country, and
we thought we had done a tremendous job of doing that in the Judiciary
Committee, only to find that the Rules Committee, which did not even
have any jurisdiction over the matter or had any hearings about the
matter, took the bill, rewrote it, brought it to the floor and struck a
completely different balance between the rights of government on one
hand and law enforcement and the rights of individuals on the other
hand.
{time} 1345
I voted against the original PATRIOT Act, and I still believe that
the balance that was struck in that bill was inappropriate. I think the
balance that we have struck in this bill is not the appropriate
balance. And a number of my colleagues have said that, well, there have
not been any abuses by law enforcement of the powers that we gave them.
But the truth of the matter is that depends on how you define an abuse.
And I do not like to define an abuse as something outrageous.
If we wait on something outrageous to happen, then we will react back
in the opposite direction of against government and law enforcement in
unreasonable ways, just as we are reacting in favor of law enforcement
now.
So here are a couple of statistics that you need to know about: the
American Library Association found that libraries have received over
200 formal and informal requests for materials including 49 requests
from Federal officers. Well, maybe they did not find anything. Maybe
that was not an abuse that people are going to get outraged about, but
I think that is outrageous.
In section 213 it talks about sneak-and-peek searches. In a letter to
the gentleman from Virginia (Mr. Scott), the Department of Justice said
on July 5, 2005 that that section had been used 153 times as of January
2005. Only 18 of those times were the uses for terrorism
investigations.
Well, what is happening with the other 80 percent is in my estimation
an abuse of this provision because we passed the law so that we could
make it easier for law enforcement to get to terrorists. The law is
being used in ways that, but for the events of 9/11 and the terrorism
that occurred, we would not have accepted as residents of this country.
I just think we have struck the wrong balance. We need to sunset this
bill again for a shorter period of time, and I hope my colleagues will
take that into account and vote against it.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I rarely disagree with my friend from North Carolina
(Mr. Watt), but I want to take some time to correct the record.
[[Page H6232]]
The delayed notification or so-called ``sneak-and-peek'' warrants
were authorized in the late seventies for purposes of racketeering and
drug-trafficking investigations and were held constitutional by the
Supreme Court in the early eighties as not violative of the fourth
amendment.
What the PATRIOT Act did was expand this previously existing
authority to terrorism investigations. So if the PATRIOT Act never
existed, the 18 instances where the delayed-notification warrants were
used for terrorism investigations would have been illegal. But all of
the other investigations that the gentleman from North Carolina
referred to would have been legal under existing practice which have
been held constitutional.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from
California (Mr. Rohrabacher).
Mr. ROHRABACHER. Mr. Chairman, I rise in reluctant opposition to this
bill.
In 2001 after an attack on the United States and the slaughter of
innocent civilians, this Congress passed the PATRIOT Act, which I
supported at that time. It gave our investigative agencies a wide
variety of special powers to fight terrorism and to win this war on
terrorism. However, these powers were not to be permanent. They were
designed to help us win the war, not to change our country permanently.
Now we have the PATRIOT Act being handed to us again, but instead it
is being handed to us in a permanent form. You do not make policy for
the United States Government protecting the rights and freedoms of our
people in an extraordinary time as this, a time of war, and then
mandate it so it is going to be the rule of our country once we live in
peacetime.
Our country was founded on the idea of limited government and
individual liberty. I gladly supported PATRIOT I. Now they have taken
all but two of the sunset provisions which would make those
extraordinary new powers that we gave the government lapse once we have
peace in this country.
Any real patriot will vote against this expansion of government at
the expense of the individual even when peacetime comes.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1\1/2\ minutes to
rebut my good friend from California.
Mr. Chairman, effective oversight is a function of effective
congressional leadership and not as a result of legislative sunsets. If
we restricted oversight to legislative sunsets, only about 5 percent of
the laws that we pass are sunset, and most of those are appropriations
bills.
Now, the gentleman from California (Mr. Rohrabacher) is the chairman
of an oversight subcommittee on the Committee on International
Relations. I do not see any sunsets coming on bills coming out of the
Committee on International Relations because I have faith in the
gentleman from California's (Mr. Rohrabacher) being able to do
effective oversight.
The Committee on the Judiciary has done a huge amount of oversight.
We have had extensive hearings. There has been more process and more
hearings and more witnesses on more sides of the issue on the PATRIOT
Act than practically any other piece of legislation that I have faced
in my 26-plus years as a Member of Congress.
Thirty-five witnesses, 12 hearings, oversight letters, responses,
inspectors general reports. I wish I had brought all of the paper that
has come about as a result of the Committee on the Judiciary's
oversight, because it would stack this high off the table here in the
House Chamber.
Mr. Chairman, the following is a listing of the oversight activities
so that the American public and everybody can see that this committee
has done its job. It has done its job effectively, and it has made sure
that the civil liberties of the people of this country have not been
infringed upon.
Hearing Chronology: House Judiciary Committee Consideration of the USA
Patriot Act, As of June 21, 2005
full committee consideration
June 10, 2005: Full Committee--Oversight Hearing on the
Reauthorization of the USA PATRIOT Act: Carlina Tapia-Ruano,
First Vice-President of the American Immigration Lawyers
Association (Minority witness); Dr. James J. Zogby, President
of the Arab American Institute (Minority witness); Deborah
Pearlstein, Director of Human Rights First (Minority
witness); and Chip Pitts, Chair of the Board of Amnesty
International USA.
June 8, 2005: Full Committee--Oversight Hearing on the
Reauthorization of the USA PATRIOT Act: Deputy Attorney
General James B. Corney.
April 6, 2005: Full Committee--Oversight Hearing on the
Department of Justice, The Use of the Law Enforcement
Authorities Granted under the USA PATRIOT Act: Attorney
General Alberto Gonzales.
subcommittee consideration
May 26, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on Material Witness
Provisions of the Criminal Code and the Implementation of the
USA PATRIOT Act: Section 505 that Addresses National Security
Letters, and Section 804 that Addresses Jurisdiction over
Crimes Committed at U.S. Facilities Abroad: Chuck Rosenberg,
Chief of Staff to the Deputy Attorney General of the
Department of Justice (Majority witness); Matthew Berry,
Counselor to the Assistant Attorney General of the Department
of Justice (Majority witness); Gregory Nojeim, Acting
Director of the Washington Legislative Office of the American
Civil Liberties Union (Minority witness); and Shayana
Kadidal, Staff Attorney, Center for Constitutional Rights
(Minority witness).
May 10, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on the Prohibition of
Material Support to Terrorists and Foreign Terrorist
Organizations and on the DOJ Inspector General's report on
Civil Liberty Violations under the USA PATRIOT Act: Honorable
Glenn Fine, Inspector General of the Department of Justice
(Majority witness); Honorable Gregory G. Katsas, Deputy
Assistant Attorney General, Civil Division of the Department
of Justice (Majority witness); Barry Sabin, Chief of the
Counterterrorism Section of the Criminal Division of the
Department of Justice (Majority witness); and Ahilan
Arulanantham, Staff Attorney for the American Civil Liberties
Union of Southern California (Minority witness).
May 5, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on Section 212 of the USA
PATRIOT Act that Allows Emergency Disclosure of Electronic
Communications to Protect Life and Limb: Honorable William
Moschella, Assistant Attorney General, Office of Legislative
Affairs, U.S. Department of Justice (Majority witness);
Willie Hulon, Assistant Director of the Counterterrorism
Division, Federal Bureau of Investigation (Majority witness);
Professor Orrin Kerr, Professor of Law at the George
Washington University Law School (Majority witness); and
James X. Dempsey, Executive Director of the Center for
Democracy and Technology (Minority witness).
May 3, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on Sections 201, 202, 213,
and 223 of the USA PATRIOT Act and Their Effect on Law
Enforcement Surveillance: Honorable Michael J. Sullivan, U.S.
Attorney for the District of Massachusetts (Majority
witness); Chuck Rosenberg, Chief of Staff to the Deputy
Attorney General (Majority witness); Heather Mac Donald, John
M. Olin fellow at the Manhattan Institute (Majority witness);
and the Honorable Bob Barr, former Representative of
Georgia's Seventh District (Minority witness).
April 28, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing--Section 218 of the USA
PATRIOT Act--If it Expires will the ``Wall'' Return?:
Honorable Patrick Fitzgerald, U.S. Attorney for the Northern
District of lllinois (Majority witness); David Kris, former
Associate Deputy Attorney General for the Department of
Justice (Majority witness); Kate Martin, Director of the
Center for National Security Studies (Minority witness); and
Peter Swire, Professor of Law at Ohio State University
(Minority witness).
April 28, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing--Have sections 206 and 215
improved FISA Investigations? (Part II): Honorable Kenneth L.
Wainstein, U.S. Attorney for the District of Columbia
(Majority witness); James Baker, Office for Intelligence
Policy and Review, U.S. Department of Justice (Majority
witness); Robert Khuzami, former Assistant United States
Attorney in the United States Attorney's Office for the
Southern District of New York (Majority witness); and Greg
Nojeim, the Associate Director and Chief Legislative Counsel
of the American Civil Liberties Union's Washington National
Office (Minority witness).
April 26, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing--Have sections 204, 207, 214
and 225 of the USA PATRIOT Act. and Sections 6001 and 6002 of
the Intellience Reform and Terrorism Prevention Act of 2004,
improved FISA Investigations? (Part I): Honorable Mary Beth
Buchanan, United States Attorney for the Western District of
Pennsylvania (Majority witness); James Baker, Office for
Intelligence Policy and Review, U.S. Department of Justice
(Majority witness); and Suzanne Spaulding, Managing Director,
the Harbour Group, LLC (Minority witness).
April 21, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on Crime, Terrorism, and the
Age of Technology--Section 209: Seizure of Voice-Mail
Messages Pursuant to Warrants; Section 217: Interception of
Computer Trespasser Communications: and Section 220:
Nationwide Service of Search Warrants for
[[Page H6233]]
Electronic Evidence: Laura Parsky, Deputy Assistant Attorney
General of the Criminal Division, U.S. Department of Justice
(Majority witness); Steven M. Martinez, Deputy Assistant
Director of the Cyber Division, Federal Bureau of
Investigation (Majority witness); James X. Dempsey, Executive
Director of the Center for Democracy and Technology (Majority
witness as a favor to Minority); and Peter Swire, Professor
of Law, Mortiz College of Law, the Ohio State University
(Minority witness).
April 19, 2005: Crime, Terrorism, and Homeland Security
Subcommittee--Oversight Hearing on Sections 203 (b) and (d)
of the USA PATRIOT Act and their Effect on Information
Sharing: Barry Sabin, Chief of the Counterterrorism Section
of the Criminal Division of the Department of Justice
(Majority witness); Maureen Baginski, Executive Assistant
Director of FBI Intelligence (Majority witness); Congressman
Michael McCaul (Majority witness); and Timothy Edgar, the
National Security Policy Counsel for American Civil Liberties
Union (Minority witness).
Witnesses (alphabetical)
1. Arulanantham, Ahilan T.--Staff Attorney, American Civil
Liberties Union
2. Baker, James A.--Counsel for Intelligence Policy,
Department of Justice *testified twice
3. Baginski, Maureen--Executive Assistant Director for the
Office of Intelligence, Federal Bureau of Investigation
4. Barr, Bob--Former Member of Congress, Atlanta, Georgia
5. Berry, Matthew--Counselor to the Assistant Attorney
General, United States Department of Justice
6. Buchanan, Mary Beth--United States Attorney, Western
District of Pennsylvania
7. Comey, James B.--Deputy Attorney General, United States
Department of Justice
8. Dempsey, Jim--Executive Director, Center for Democracy
and Technology *testified twice
9. Edgar, Timothy--National Security Policy Counsel,
American Civil Liberties Union
10. Fine, Glenn A.--Inspector General, United States
Department of Justice
11. Fitzgerald, Patrick--U.S. Attorney, Northern District
of Illinois
12. Gonzales, Alberto--Attorney General of the United
States
13. Hulon, Willie T.--Assistant Director of
Counterterrorism Division, Federal Bureau of Investigation
14. Kadidal, Shayana--Staff Attorney, Center for
Constitutional Rights
15. Katsas, Gregory--Deputy Assistant Attorney General,
United States Department of Justice
16. Kerr, Orin S.--Associate Professor of Law, The George
Washington University
17. Khuzami, Robert S.--Former Assistant U.S. Attorney,
Southern District of New York
18. Kris, David--Vice President for Corporate Compliance,
Time Warner Corporation
19. Mac Donald, Heather--John M. Olin Fellow, The Manhattan
Institute
20. Martin, Kate--Director, Center for National Security
Studies
21. Martinez, Steven M.--Deputy Assistant Director of Cyber
Division, Federal Bureau of Investigation
22. McCaul, Michael--U.S. Representative & former Chief of
Counterterrorism and National Security for the U.S.
Attorney's Office in Western Judicial District of Texas
23. Moschella, William--Assistant Attorney General, United
States Department of Justice
24. Nojeim, Gregory T.--Associate Director/Chief
Legisaltive Counsel, American Civil Liberties Union
*testified twice
25. Parsky, Laura H.--Deputy Assistant Attorney General,
Department of Justice
26. Pearlstein, Deborah--Director, U.S. Law and Security
Program
27. Pitts, Chip--Chair of the Board, Amnesty International
USA
28. Rosenberg, Chuck--Chief of Staff to Deputy Attorney
General, United States Department of Justice *testified twice
29. Sabin, Barry--Chief of the Counterterrorism Section for
the Criminal Division, Department of Justice *testified twice
30. Spaulding, Suzanne--Managing Director, the Harbour
Group, LLC
31. Sullivan, Michael--United States Attorney, District of
Massachusetts
32. Swire, Peter--Professor of Law, Ohio State University
*testified twice
33. Tapia-Ruano, Carlina--First Vice President, American
Immigration Lawyers Association
34. Wainstein, Kenneth L.--Interim U.S. Attorney, District
of Columbia
35. Zogby, Dr. James J.--President, Arab American Institute
Government Witnesses
1. Baker, James A.--Counsel for Intelligence Policy,
Department of Justice *testified twice
2. Baginski, Maureen--Executive Assistant Director for the
Office of Intelligence, Federal Bureau of Investigation
3. Berry, Matthew--Counselor to the Assistant Attorney
General, United States Department of Justice
4. Buchanan, Mary Beth--United States Attorney, Western
District of Pennsylvania
5. Comey, James B.--Deputy Attorney General, United States
Department of Justice
6. Fine, Glenn A.--Inspector General, United States
Department of Justice
7. Fitzgerald, Patrick--U.S. Attorney, Northern District of
Illinois
8. Gonzales, Alberto--Attorney General of the United States
9. Hulon, Willie T.--Assistant Director of Counterrorism
Division, Federal Bureau of Investigation
10. Katsas, Gregory--Deputy Assistant Attorney General,
United States Department of Justice
11. Martinez, Steven M.--Deputy Assistant Director of Cyber
Division, Federal Bureau of Investigation
12. Moschella, William--Assistant Attorney General, United
States Department of Justice
13. Parsky, Laura H.--Deputy Assistant Attorney General,
Department of Justice
14. Rosenberg, Chuck--Chief of Staff to Deputy Attorney
General, United States Department of Justice *testified twice
15. Sabin, Barry--Chief of the Counterterrorism Section for
the Criminal Division, Department of Justice *testified twice
16. Sullivan, MichaeL--United States Attorney, District of
Massachusetts
17. Wainstein, Kenneth L.--Interim U.S. Attorney, District
of Columbia
Witnesses Testifying in Their Capacity as Former Government
Officials
1. Khuzami, Robert S.--Former Assistant U.S. Attorney,
Southern District of New York
2. McCaul, Michael--U.S. Representative & former Chief of
Counterterrorism and National Security for the U.S Attorney's
Office in Western Judicial District of Texas
Non-Government Witnesses
1. Arulanantham, Ahilan T.--Staff Attorney, American Civil
Liberties Union
2. Barr, Bob--Former Member of Congress, Atlanta, Georgia
3. Dempsey, Jim--Executive Director, Center for Democracy
and Technology *testified twice
4. Edgar, Timothy--National Security Policy Counsel,
American Civil Liberties Union
5. Kadidal, Shayana--Staff Attorney, Center for
Constitutional Rights
6. Kerr, Orin S.--Associate Professor of Law, The George
Washington University
7. Kris, David--Vice President for Corporate Compliance,
Time Warner Corporation
8. Mac Donald, Heather--John M. Olin Fellow, The Manhattan
Institute
9. Martin, Kate--Director, Center for National Security
Studies
10. Nojeim, Gregory T.--Associate Director/Chief
Legisaltive Counsel, American Civil Liberties Union
*testified twice
11. Pearlstein, Deborah--Director, U.S. Law and Security
Program
12. Pitts, Chip--Chair of the Board, Amnesty International
USA
13. Spaulding, Suzanne--Managing Director, the Harbour
Group, LLC
14. Swire, Peter--Professor of Law, Ohio State University
*testified twice
15. Tapia-Ruano, Carlina--First Vice President, American
Immigration Lawyers Association
16. Zogby, Dr. James J.--President, Arab American Institute
Organizations represented
1. American Civil Liberties Union (*3 different witnesses)
2. Center for Democracy and Technology
3. Center for Constitutional Rights
4. Time Warner Corporation
5. The Manhattan Institute
6. Center for National Security Studies
7. U.S. Law and Security Program
8. Amnesty International USA
9. the Harbour Group, LLC
10. American Immigration Lawyers Association
11. President, Arab American Institute
* Not sure how to classify Universities that have
professors testifying, since their testimony does not
necessarily reflect the views of the institution. Also, was
Barr representing anyone?
OVERSIGHT: House Judiciary Committee Oversight of the USA Patriot Act
OVERSIGHT THROUGH LETTERS TO THE DEPARTMENT OF JUSTICE
House Judiciary Committee sent the Attorney General, John
Ashcroft, a letter on June 13, 2002, with 50 detailed
questions on the implementation of the USA PATRIOT Act. The
questions were a result of extensive consultation between the
majority and minority Committee counsel. Assistant Attorney
General, Daniel Bryant, responded to Chairman Sensenbrenner
and Ranking Member Mr. Conyers on July 26, 2002, providing
lengthy responses to 28 out of the 50 questions submitted. On
August 26, 2002, Mr. Bryant sent the responses to the
remaining questions, after sending responses to six of the
questions to the House Permanent Select Committee on
Intelligence. Then, on September 20, 2002, Mr. Bryant sent
the minority additional information regarding the Department
of Justice's responses to these questions.
On April 1, 2003, Chairman Sensenbrenner and Ranking Member
Mr. Conyers sent a second letter to the Department of Justice
with additional questions regarding the use of pre-existing
authorities and the new authorities conferred by the USA
PATRIOT Act. Once again, the questions were the product of
bipartisan coordination by Committee counsel. Acting
Assistant Attorney General, Jamie E. Brown, responded with a
May 13, 2003 letter that answered the questions she deemed
relevant to the Department of Justice and forwarded the
remaining questions to the appropriate officials at the
Department of Homeland Security. On June 13, 2003,
[[Page H6234]]
the Assistant Secretary for Legislative Affairs at the
Department of Homeland Security, Pamela J. Turner, sent
responses to the forwarded questions.
On November 20, 2003, Chairman Sensenbrenner and
Congressman Hostettler, Chairman of the Subcommittee on
Immigration, Border Security, and Claims, sent a letter to
the Comptroller General of the Government Accountability
Office (GAO) requesting a GAO study of the implementation of
the USA PATRIOT Act anti-money laundering provisions. This
report was released on June 6, 2005.
OVERSIGHT THROUGH HEARINGS
On May 20, 2003, the Committee's Subcommittee on the
Constitution held an oversight hearing entitled, ``Anti-
Terrorism Investigations and the Fourth Amendment After
September 11th: Where and When Can Government Go to Prevent
Terrorist Attacks.''
On June 5, 2003, the Attorney General testified before the
full Committee on the Judiciary at an oversight hearing on
the United States Department of Justice. Both the hearing on
May 20 and the hearing on June 5 discussed oversight aspects
of the USA PATRIOT Act.
OVERSIGHT THROUGH BRIEFINGS
The Subcommittee on Crime, Terrorism, and Homeland Security
of this Committee requested that officials from the
Department of Justice appear and answer questions regarding
the implementation of the USA PATRIOT Act. In response to our
request, the Department of Justice gave two separate
briefings to Members, counsel, and staff:
During the briefing held on August 7, 2003, Department
officials covered the long-standing authority for law
enforcement to conduct delayed searches and collect business
records, as well as the effect of the USA PATRIOT Act on
those authorities.
During the second briefing, held on February 3, 2004, the
Department of Justice discussed its views of S. 1709, the
``Security and Freedom Ensured (SAFE) Act of 2003'' and H.R.
3352, the House companion bill, as both bills proposed
changes to the USA PATRIOT Act.
The Department of Justice has also provided three
classified briefings on the use of the Foreign Intelligence
Surveillance Act (FISA) under the USA PATRIOT Act for Members
of the Judiciary Committee:
On June 10, 2003, October 29, 2003, and June 7, 2005 the
Justice Department provided these briefings.
The Department also provided a law enforcement sensitive
briefing on FISA to the House Judiciary Committee Members and
staff on March 22, 2005.
Mr. CONYERS. Mr. Chairman, I yield 15 seconds to the gentleman from
California (Mr. Rohrabacher).
Mr. ROHRABACHER. I would suggest that we do not have to sunset all
the legislation going through this Congress, but we have to pay
particular attention to that legislation that affects the civil
liberties of our people. And if we are going to in some way expand the
power of government over our people in time of war because it is
necessary, that should be sunsetted once the war is over. By
permanently changing America, we are not furthering the cause of
freedom in this country.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentlewoman from
Wisconsin (Ms. Baldwin), a former member of the Committee on the
Judiciary.
Ms. BALDWIN. Mr. Chairman, I rise today to oppose H.R. 3199. As the
gentleman just mentioned, I was a member of the Committee on the
Judiciary on September 11, 2001. And in the weeks that followed, I
joined my colleagues in committee to carefully craft a bill to give law
enforcement personnel additional and powerful tools to fight terror.
But as many of you recall, the work product of our committee was
rejected at the eleventh hour in favor of a far more expansive act
which has continued to raise concerns among those who cherish our
constitutional liberties.
Through the PATRIOT Act and other anti-terrorism measures, we have
become a country that permits secret surveillance, secret searches,
denial of court review, monitoring of conversations between citizens
and their attorneys, and searching of library and medical records of
citizens. This does not sound like America to me.
Mr. Chairman, reauthorization of this act is an opportunity; it is an
opportunity to restore the checks and balances that must exist in a
free society. I urge my colleagues to vote ``no'' to allow us that
chance.
Mr. CONYERS. Mr. Chairman, I yield the balance of my time to the
distinguished gentleman from Massachusetts (Mr. Meehan).
Mr. MEEHAN. Mr. Chairman, September 11 made it clear that the world
had changed, that our law enforcement and intelligence agencies needed
to change accordingly.
Democrats and Republicans agreed on the need to update the tools
necessary for law enforcement to address the threat of terrorism on
American soil. What started as an effort to protect our country from
terror has become a virtually uncontrolled vehicle for government to
invade the privacy of every American.
It was with that possibility in mind that the Congress included in
the PATRIOT Act a provision requiring a review after a few years to
determine which parts should be retained, which parts should be
modified, and which should be repealed. It is evident to me and to many
Americans that the PATRIOT Act is inadequate in its protection of civil
liberties.
Section 206's blanket, roving wiretaps, section 213's sneak-and-peek
searches, and section 215's expansive power allowing the government to
obtain any piece of information on any American are just three examples
of how the PATRIOT Act is out of control.
Last week, the Committee on the Judiciary met to address these and
other issues in an attempt to bring back some balance to the law
enforcement power and civil liberties. Democrats on the committee
offered dozens of amendments in an attempt to control this bill and
bring balance to it. Virtually every single one of these amendments was
rejected on a party-line vote. Most troubling was the extension of
sunsetted provisions that should have been allowed to expire or at
least require reauthorization in the next 4 years.
Periodically revisiting the PATRIOT Act is a good thing. To preserve
our commitment to making the best and most up-to-date assessment of our
law enforcement and intelligence policies, we should include more, not
fewer, sunsets and make them shorter, not longer.
The PATRIOT Act was an effort to answer the most difficult question
our democracy faces: How much freedom are we willing to give up to feel
safe? Too much freedom, giving up too much power given to the Justice
Department.
Today we are asking not to hinder the pursuit of terrorists, but to
return some sanity and balance to the law.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself 1\1/2\ minutes.
Mr. Chairman, we have heard another attack on delayed notification or
sneak-and-peek warrants. Let me tell you what has happened earlier this
month. A U.S. district judge in Washington State executed or authorized
a delayed-notification warrant to look into a building on the U.S. side
of the northern border. And what was discovered but a rather
sophisticated tunnel between Canada and the United States to smuggle
contraband, and perhaps terrorists, through the border and into this
country without being detected by our border patrol.
Using a delayed-notice search warrant, the DEA and other agents
entered the home on July 2 to examine the tunnel. Shortly thereafter, a
U.S. district judge authorized the installation of cameras and
listening devices in the home to monitor the activities in the home.
Using these twice, Federal, State and local law enforcement officials
observed multiple trips by three defendants through the tunnel carrying
large hockey bags or garbage bags. These bags were loaded into a van on
the U.S. side and driven south for delivery.
Ninety-three pounds of marijuana were found in these bags when the
Washington State Patrol stopped the car. That never would have happened
without a delayed-notification warrant. And if they can bring 93 pounds
of marijuana in, they can bring terrorists in as well.
These warrants are good. They protect us. They ought to be kept.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Sweeney). The gentleman from Michigan (Mr.
Hoekstra) and the gentlewoman from California (Ms. Harman) each will
control 15 minutes of debate from the Permanent Select Committee on
Intelligence.
The Chair recognizes the gentleman from Michigan (Mr. Hoekstra).
{time} 1400
Mr. HOEKSTRA. Mr. Chairman, I yield 3 minutes to the gentleman from
Michigan (Mr. Rogers), the only
[[Page H6235]]
former FBI member on the Permanent Select Committee on Intelligence.
Mr. ROGERS of Michigan. Mr. Chairman, I thank the gentleman for
yielding me this time and for his great work on this, and I want to
thank my friends on the Democrat side of the aisle for the work they
have given for the PATRIOT Act. Thanks for at least bringing this
debate up.
Mr. Chairman, as a former FBI agent, I had occasion to work some
pretty bad folks in the City of Chicago in working organized crime and
public corruption. I developed the sources for wiretaps and applied
wiretaps for things like murder and extortion, gambling, prostitution,
racketeering, child pornography.
There was a case of a child pornographer who was producing child
pornography tapes where we used the legal system, a legal instrument,
through due process of law, to get records that we needed from
businesses, from his home, from other places to make sure that we could
find the entire network of distribution of criminals who were preying
on our children. America said something interesting. The people of
America said, you know, Agent Rogers, at the time we trust you, but we
trust our Constitution more, so you have to follow the law. You have to
follow the Constitution even to go after these child molesters and
people who are promoting child pornography, people who are involved in
murder and racketeering. And we did, and we used the law as we knew it
to put somebody in jail.
We said if a child molester goes into the library and sits down next
to your child, there is going to be no safe haven in America. We are
going to use due process according to the Constitution and make sure
our children, our libraries, our personnel are safe. We used that
before the PATRIOT Act got here.
I worked a bombing case where they were trying to sell bombs to
individuals who were blowing up other gangsters; gangsters blowing up
gangsters and gangsters blowing up strip clubs and other things to gain
influence over them. We used all the processes, including a delayed
search warrant, because we needed to know who they were getting their
materials from. We used due process under the Constitution and we
brought them to justice. And America is grateful for that, and it made
an impact. And we never, ever, ever once deviated from the
Constitution.
This whole debate is almost ridiculous, Mr. Chairman. All we do in
the PATRIOT Act is say, look, if we can go after child molesters
sitting in the library and bombers who we need to sneak and peak on a
warrant, we ought to be able to go after terrorists. That is all the
PATRIOT Act did. There is no subversion of the Constitution, no
suspension of the Constitution.
Mr. Chairman, it is maddening to me that somebody in America and in
England and around the world is getting up in the morning thinking, I
am going to kill somebody in an act of terror, and that we somehow
fiddle while Rome is burning and argue should it be 10 years or 5 years
on a renewal or a sunset. This is ridiculous. We have people who are
committed to killing Americans today. We are at war. This bill helps
protect America and does not suspend the Constitution of the United
States.
For those who argue there are some emergency powers in here, you are
wrong. You should get up and argue against the criminal code every day
on this floor, and you should put in bills to remove our ability as
agents of the FBI to do that. You do not because it is legal and it is
proper under our Constitution.
Mr. Chairman, we must support this act. We must do it today for the
future safety of the United States of America.
Ms. HARMAN. Mr. Chairman, I yield myself 3 minutes.
Mr. Chairman, the London attacks this morning, be they copycat
terrorism or yet another al Qaeda attempt, are one more reminder of how
vulnerable we are. We need effective tools to combat terrorism. The
terrorist threat is real, and if we are going to demand that the FBI
uncover terror cells in the U.S., we need to give them the tools to do
that.
The al Qaeda organization that attacked us on 9/11 has changed. It is
no longer a top-down centralized terror group planning acts from
overseas. Instead, we face a loose network of home-grown terror cells,
or what I call franchise terrorism. Their attacks draw inspiration from
al Qaeda, but they act independently, making it tougher to disrupt
their plans.
I want to make two points about the PATRIOT Act. First, it gave law
enforcement some important new legal authorities. But new legal
authorities, Mr. Chairman, on their own, will not protect us from
terrorism. We need to shift priorities, to develop better strategies
and devote greater resources to protect our soft targets, like rail,
subways, and ports, and that we have not yet done.
Second, on the issue of reauthorizing the 16 provisions that are
sunsetting, my view is ``mend it, don't end it.'' The PATRIOT Act was
passed 45 days after 9/11, with little debate. We were bracing for more
terror. The invasion of Afghanistan had begun and Capitol Hill was hit
with anthrax attacks. Congress did a fairly decent job, and I supported
the bill, but we can do better.
We should reauthorize the PATRIOT Act, which modernized law
enforcement tools, but we should clarify and tailor the authorities so
that the government does not have a license to engage in fishing
expeditions for your personal information or conduct FBI surveillance
on innocent Americans.
The bill on the floor today is better than the original PATRIOT Act.
And if some of the amendments we will consider pass, it will be even
better. But my colleagues on the Permanent Select Committee on
Intelligence will describe in a moment amendments which we offered in
committee and before the Committee on Rules. Those amendments are
solid, moderate, and bipartisan, and they should be able to be debated
today. The good news is that the Senate Judiciary Committee, on a
bipartisan basis, has just reported a bill that includes many of them.
That bill, I hope, will serve as the model in conference committee.
That bill could have been the House bill.
In conclusion, protecting America from terrorism is not a Democrat or
Republican issue, it is an American issue. As I have often said, the
terrorists are not going to check our party registration before they
blow us up. So when we defend America, let us forget party labels and
focus on what will provide security and liberty for the American
people. Balancing liberty and security is not a zero sum game. You
either get more of both or less. The American people deserve more of
both.
Mr. Chairman, I reserve the balance of my time.
Mr. HOEKSTRA. Mr. Chairman, I yield 3 minutes to the gentleman from
California (Mr. Cunningham), a member of the committee.
Mr. CUNNINGHAM. Mr. Chairman, I thank the gentleman for yielding me
this time.
I listened to my colleagues on the committee, the gentlewoman from
California (Ms. Harman), the gentleman from Massachusetts (Mr.
Delahunt), and also the gentleman from California (Mr. Rohrabacher),
and they have legitimate concerns. I do not think there is anybody in
this body on either side of this issue that does not have concerns. I
would like to see, in particular, a sunset provision, although I do not
know what the timing should be. God willing, there should be a day we
will not need a PATRIOT Act, and it is easier to vote it back than it
is to get rid of it.
Mr. Chairman, 26 nations have been attacked by al Qaeda, and we just
saw today England, but look at France and Japan. It also tells us the
United States is behind in its security for our mass rail and bus
transportation systems, not just aviation but those as well.
Let me cite an example of what happened before 9/11 and how the
PATRIOT Act, in my opinion, would have stopped an event, not just may
have.
Agencies knew of an outspoken extremist group. They were outspoken in
support of Osama bin Laden before 9/11, and they were outspoken about
their ethnic intolerance and raising money for al Qaeda. Agencies like
CIA, FBI and law enforcement had thousands of leads and limited
manpower. Their primary issue at the time was getting out two agents in
a foreign country that were under extreme conditions. They were
concerned also about if they questioned this group that they would be
taken to court on profiling. The rhetoric was there, but no action. The
FBI and the CIA were limited in their ability to check out this group.
[[Page H6236]]
Mr. Chairman, this particular group was the group that was training
in Arizona, the pilots and the crews that flew into New York City, that
flew into the Pentagon, and that crashed in Pennsylvania. Mohammed Atta
is another example. His roommate, the limitations that our agencies had
on questioning him, he knew about the 9/11 bombings, is another reason
why I think that we need this act.
I am conflicted, just like my colleague, the gentlewoman from
California (Ms. Harman) and others, because there are things that all
of us are concerned about. But Khalid Sheik Mohammed is the guy who
planned 9/11. We caught this rascal. His replacement was a guy named
Abu al-Libbi, and we caught that rascal. And some of the documents
showed that it is only a matter of time, Mr. Chairman, until this
country is hit, so we must be diligent. This act helps us do that, and
weighing the concerns and is the reason I think all of us need to
support the PATRIOT Act.
Ms. HARMAN. Mr. Chairman, it is my pleasure to yield 2 minutes to the
gentleman from Texas (Mr. Reyes), a member of our committee.
Mr. REYES. Mr. Chairman, I thank the gentlewoman for yielding me this
time on this very important issue. I also rise, like my colleagues,
understanding that we face a situation that is potentially very
dangerous, especially given the events of this morning again in London.
But I also think it is important and prudent that we craft legislation
that protects our country not just from the terrorists but also from
abuses.
I rise today, Mr. Chairman, to express my disappointment with this
House for not allowing my fellow colleague on the Permanent Select
Committee on Intelligence, the gentleman from Florida (Mr. Hastings),
to offer an amendment which is important to H.R. 3199, the USA PATRIOT
Act reauthorization. His amendment would have extended until 2010 the
sunset date of section 6001 of the Intelligence Reform and Terrorism
Prevention Act, also known as the ``Lone Wolf'' provision. Instead, the
bill before us makes that provision permanent. It has only been in
effect for 7 months, which is, in my opinion, an inadequate amount of
time for the government and the public to assess the impact this
significant expansion of government authorities has.
We are having this debate today, Mr. Chairman, because 4 years ago
Congress had the wisdom to include sunset provisions in the PATRIOT
Act. These sunsets are key to ensuring individual rights and liberties
as well as allowing Congress to continue to evaluate the effectiveness
of this act.
Mr. Chairman, I understand the need for this legislation, and I will
support the passage today. However, I hope that my colleagues
understand that if we are to continue much further down this road we
may be doing irreparable damage to civil liberties in this country
without sunset provisions.
Mr. HOEKSTRA. Mr. Chairman, I yield 3 minutes to the gentlewoman from
New Mexico (Mrs. Wilson), another member of the committee.
Mrs. WILSON of New Mexico. Mr. Chairman, I thank the gentleman for
yielding me this time and for his leadership on this issue.
Over the last several months, the Committee on the Judiciary has had
numerous oversight hearings, as has the House Permanent Select
Committee on Intelligence, to look at the PATRIOT Act and see where we
need to improve it and what we need to do to extend the expiring
provisions.
My colleague from southern California said that we should have
sunsets on this because once we have peace we should not have these
provisions. Once the war is over. Once the war is over.
The war against foreign terrorists and spies will not end, any more
than the police's efforts to combat organized crime or drug kingpins.
The tools that we have put into the PATRIOT Act are identical to the
tools that law enforcement have had for a long time in criminal cases,
but we did not have those authorities in foreign intelligence and
counterterrorism cases.
There are plenty of myths about the PATRIOT Act, and I think we need
to put a few of them to rest. One of them is the myth that the local
sheriff can go into your library and find out what you have been
reading. They cannot. Under the PATRIOT Act, they need a court order in
order to get any business records or library records or anything else,
under the supervision of a Federal judge. And it has to be as part of a
foreign terrorist investigation or counterintelligence investigation
against foreign spies. It is directed not against Americans but against
those who might come to this country to do us harm.
The most important thing that the PATRIOT Act did was to break down
the walls between law enforcement and intelligence to be able to share
information across that wall in order to protect us before the attack
comes. The intention of the PATRIOT Act is to prevent the next
terrorist attack, instead of just letting the FBI gather the criminal
evidence to convict somebody after thousands more have died.
{time} 1415
We need to reauthorize this act, and we also collectively as
Americans need to dispel the myths about the act and make some
important strengthening of the act so that in the future it can
continue to protect us.
Ms. HARMAN. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from Iowa (Mr. Boswell), a valued member of the Permanent Select
Committee on Intelligence and the only one of us successful enough to
get his language adopted in the bill before us today.
(Mr. BOSWELL asked and was given permission to revise and extend his
remarks.)
Mr. BOSWELL. Mr. Chairman, I thank the gentlewoman for yielding me
this time to discuss this very important issue.
The PATRIOT Act has sparked important discussion about protecting
ourselves from terrorists and protecting our civil liberties. It is
clear we can make reforms to better ensure we are giving law
enforcement all of the tools they need while maintaining the
appropriate safeguards to protect the very freedoms we cherish.
Last week as the ranking member of the Subcommittee on Human
Intelligence with the gentleman from California (Mr. Cunningham) as the
chairman, I was able to include a reform so the PATRIOT Act ensures
greater judicial oversight of government wiretaps. The so-called John
Doe roving wiretaps are a critical tool in our efforts to fight
terrorism because they allow surveillance when neither the target's
identity nor location of the interception is known.
This amendment allows these wiretaps to continue, but requires the
government to report back to the courts with an explanation of the
facts and circumstances surrounding the rationale of the wiretap. This
will allow greater oversight of the wiretaps without impeding the
government's need to obtain information on potential terrorist plots
quickly. If we focus on commonsense reforms, we can protect our
communities from terrorists, and we can protect our civil liberties.
Mr. HOEKSTRA. Mr. Chairman, I reserve the balance of my time.
Ms. HARMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from
California (Ms. Eshoo), a member of the Permanent Select Committee on
Intelligence.
(Ms. ESHOO asked and was given permission to revise and extend her
remarks.)
Ms. ESHOO. Mr. Chairman, I thank the distinguished ranking member for
yielding me this time.
One of the most prudent things, in my view, that Congress did in
passing the original PATRIOT Act was to sunset certain provisions, thus
ensuring that a future Congress would review and revise them and have a
very healthy and sobering debate. Rather than sunsetting these
provisions again, this bill makes permanent 14 of the 16 provisions set
to expire without addressing the important civil liberty issues.
I am somewhat taken aback as I listen to different parts of the
debate on the floor. One would think that the Constitution is something
that can be set aside when it is not convenient to follow. The
Constitution is the soul of our Nation. There are magnificently written
constitutions around the world, but their countries do not heed their
constitution. The American people take our Constitution seriously.
And so this debate, not allowing the sunsets in the future, I think
is very, very important to bring up today. The
[[Page H6237]]
bill continues to allow the FBI to get financial, telephone, Internet
and consumer records relevant to an intelligence investigation without
judicial approval.
Prior to the PATRIOT Act, these requests had to be directed at agents
of a foreign power. Under the PATRIOT Act, they can be used against
anyone, including American citizens.
The bill continues to allow the FBI to execute a search and seizure
warrant without notifying the target of a warrant for 6 months if it is
deemed that providing advance notice would interfere with the
investigation. This section is not limited to terrorism investigations
and is not scheduled to sunset.
The bill does not sufficiently address the issues in section 206
which deal with the roving John Doe wiretaps. Under the PATRIOT Act,
the FBI can obtain a warrant and intelligence investigations without
identifying the person or the phone in question.
This bill dose nothing to protect library records and bookstore
receipts. I offered an amendment in the Intelligence Committee to
modify Section 215 of the PATRIOT Act to prohibit the FBI from using
this section to obtain library circulation records, library patron
lists, book sales records, or book customer lists, but the amendment
was not allowed by the Rules Committee.
In conclusion, the American people love and cherish their liberties,
and they want and deserve to be safe. I think we can do both. I do not
believe this bill does both. We need a better bill.
Mr. HOEKSTRA. Mr. Chairman, I yield 1 minute to the gentleman from
Indiana (Mr. Chocola).
Mr. CHOCOLA. Mr. Chairman, I appreciate the gentleman yielding me
this time.
Over the past 3 years, the PATRIOT Act has played a key role in the
prevention of terrorist attacks right here in the United States. Prior
to the PATRIOT Act, the ability of government agencies to share
information with each other was limited, which kept investigators from
fully understanding what terrorists might be planning and to prevent
their attacks.
The U.S. Attorney for the Northern District of Indiana, Joseph Van
Bokkelen, explained, ``If an assistant U.S. Attorney learned through
the use of a grand jury that there was a planned terrorist attack in
northern Indiana, he or she could not share that information with the
CIA.''
The PATRIOT Act brought down the wall separating intelligence
agencies from law enforcement and other entities charged with
protecting the Nation from terrorism. It has given law enforcement the
tools they need to investigate terrorist activities while striking a
delicate balance between preventing another attack and preserving
citizens' constitutional rights. And to date, there has not been one
verified case of civil liberties abuse.
Mr. Chairman, I urge my colleagues to join me in supporting the
reauthorization of the PATRIOT Act and to give our government the tools
it needs to succeed in the war on terrorism.
Ms. HARMAN. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman
from New Jersey (Mr. Holt), another valued member of our committee.
Mr. HOLT. Mr. Chairman, I rise in opposition to the PATRIOT Act. Even
if all of the amendments before us today are passed, it will not bring
this bill into the shape that it should be.
We worked on this in the Permanent Select Committee on Intelligence.
I am sorry to say that most of our reasonable amendments were voted
down on a party-line basis. But to make matters worse, even those
improvements made in the Permanent Select Committee on Intelligence did
not find their way through the Committee on Rules to the floor. So I
remain deeply concerned about what this bill does to the American
people.
The police and prosecution powers of government are among the most
important powers for preserving life and liberty, but they are also
among the most fearsome. Section 213, the so-called sneak-and-peek
searches, it would allow investigators to come into your home, my home,
take pictures, seize personal items, and when they discover they have
made a mistake, there is no time in which they have to notify you that
they have been there. One does not have to be a paranoid to be
concerned that somebody has been in your house.
Members might say it only applies to terrorists; it does not apply to
law-abiding citizens like you and me. Well, tell that to Brandon
Mayfield, tell that to the Portland attorney who was detained by
investigators under the PATRIOT Act. Now, the FBI in that case
apologized, but this is something that hits home, and we have a
responsibility to preserve the freedoms of people at home.
Mr. Chairman, I rise today in opposition to the reauthorization of
the PATRIOT Act. As you know, the PATRIOT Act was passed in the
aftermath of the attacks of September 11, 2001. The Act was an
immediate reaction to the state of shock the country was in--being
drafted, briefly debated, approved, and signed into law by October 26,
2001, just weeks after the attacks. At the time I, and many other
Members of Congress, voted for the Act under the condition that a
number of the provisions contained within it would sunset and thus
would need to be reviewed and reauthorized.
The police and prosecution powers of the government are important and
necessary to preserving life and liberty, but they are also the most
fearsome powers of government and, if abused, can rob us of life and
liberty. For generations, thousands upon thousands of people have come
to America's shores to be free of the oppressive hand of authorities in
other countries, to be free of the fear of the knock on the door in the
middle of the night, to be free of the humiliation and costs and stigma
of inappropriate investigations.
As the only Member of Congress from New Jersey, a state which
suffered great loss on September 11th, on the House Permanent Select
Committee on Intelligence, I looked forward to working within the
committee during our mark up of the PATRIOT Act to address a number of
valid concerns that have arisen over the last few years about the sun-
setting provisions. However, most of the important amendments that were
offered were defeated on party lines. And what we did accomplish--the
improvements we made--did not make it through the Rules Committee for
consideration on the floor.
I remain deeply concerned about many of the provisions in the PATRIOT
Act as reported to the House, but I would like to specifically discuss
two of them. I am deeply troubled by Section 213, which will be
permanently reauthorized by this legislation. The so called ``sneak and
peek'' searches allow federal agents to literally go in to your home,
my home, anyone's home and conduct a secret search. Investigators can
take pictures and even seize personal items or records and unbelievably
they do not need to tell you about it for an indefinite period of time.
When they discover they made a mistake or they discover you are not
engaged in terrorist actions, they are under no obligation to ever let
you know promptly.
Another provision of the PATRIOT Act, Section 215, allows
investigators broad access to any record without probable cause of a
crime. This means that investigators can review your deeply personal
medical records and also library records without telling you about it
and without any probable reason to do it. Investigators under Section
215 would be able to access all the medical records at a local hospital
with only the indication that there may be potentially valuable records
contained therein. In other words, most of the records searched are of
innocent people, but because there is a terrorist investigation
underway or a terrorists records might be somewhere in the batch, they
get swept up in the search.
These provisions and many others have a deep impact on the freedoms
and civil liberties all Americans. Some will say we need these
provisions to track down terrorist and build cases against them. But
what goes unsaid is that these provisions will also be used against
people who have committed no crime and who are completely innocent. It
is because of this that the PATRIOT Act must be understood as affecting
all of us. A small number of unnecessary intrusions can have a broadly
chilling effect. Proponents of the Patriot bill before us will say that
it is directed at terrorists, not law abiding citizens, but they should
try to tell that to Mr. Brandon Mayfield of Portland, Oregon.
Brandon Mayfield, a Portland attorney, was detained by investigators
last year as a material witness under authority granted by the PATRIOT
Act. They alleged that his finger prints were found on a bag linked to
the terrorist bombings in Madrid, Spain last year. More so called
evidence was collected when his residence was searched, without his
knowledge, under Section 213 of the Act. However, the investigators
were wrong. The FBI has issued an apology for his wrongful detention.
But this is no conciliation for a lawyer and Muslim American whose
reputation was tarnished by this investigation, made possible by the
overly-broad powers granted under the PATRIOT Act. How can we allow
this to happen in America? Of course, some mistakes will occur, but
this bill strikes the wrong balance and makes those errors more likely.
[[Page H6238]]
In 2001, I voted in favor of the PATRIOT Act with reservations, and
my reservations have only increased over time. At the time, I said that
in the anxious aftermath of the attacks of September 11, 2001, we were
likely to get wrong the balance between freedom and security. I
insisted on a sunset clause so that the law would expire after several
years and Congress would adjust the balance. Because those sunsets were
adopted we have an opportunity to revisit this important legislation
today. Unfortunately, the Majority has prevented many amendments which
have bipartisan support from being offered. These amendments would have
helped restore the proper balance between freedom and security that the
bill gets wrong. And they would have provided the important sunsets
that would force review of the bill in four years.
James Madison, speaking in 1788 before the Virginia Convention (not
all that far from where we are today) explained what I believe is the
unanswered problem with the PATRIOT Act. He said, ``I believe there are
more instances of the abridgement of the freedom of the people by
gradual and silent encroachments of those in power than by violent and
sudden usurpations.'' As Madison said over 200 years ago, the liberty
and freedoms we as Americans cherish are being eroded today not at the
barricade, but in the library, and at our local doctor's office. It is
for this reason that I urge my colleagues to vote ``no'' on the PATRIOT
Act.
Mr. HOEKSTRA. Mr. Chairman, I yield 1 minute to the gentleman from
Kansas (Mr. Tiahrt), a member of the Permanent Select Committee on
Intelligence.
Mr. TIAHRT. Mr. Chairman, I thank the gentleman for his leadership on
this action as well as others that involve the Permanent Select
Committee on Intelligence.
I want to remind Members why we are here. We are here because the
PATRIOT Act will sunset. It will sunset so we can see if there were any
violations of civil liberties during the time it was in effect, which
will be approximately 4 years by the end of this year.
There were over 7,000 alleged violations filed by the American Civil
Liberties Union, as Members heard before from the gentleman from
Indiana. However, we have no violations of civil liberties under the
PATRIOT Act. Of those 7,000 allegations, some were under other parts of
the law, but none under the PATRIOT Act. So what we are talking about
in this bill is sort of splitting hairs.
We have heard comments about how there is no judicial oversight for
what is going on. There is judicial oversight for almost everything
involved in the PATRIOT Act with few exceptions, like national security
letters, which does require a certification of relevance before they
move forward.
We use these tools in the PATRIOT Act so we can catch terrorists and
prevent acts of violence against American citizens. We use these same
tools in other parts of the law, like when we are trying to find patent
infringement, when we are trying to catch organized criminals, when we
are trying to stop drug trafficking. This is a good law. I hope my
colleagues will support it. It does protect civil liberties, and we
should pass it.
Ms. HARMAN. Mr. Chairman, to the last speaker, I agree it is good,
but I think it could be a lot better.
Mr. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr.
Ruppersberger), the former rookie of our committee.
Mr. RUPPERSBERGER. Mr. Chairman, we are all watching what is
happening in London; and with that backdrop, we are discussing
reauthorizing the PATRIOT Act today. We are all committed to finding
and fighting terrorists. No one party, Democrats or Republicans, has
exclusivity over this issue. We are all for stopping terrorists and
protecting our citizens.
While we are all committed to this fight, it is still our
congressional duty to exercise our oversight responsibilities. We can
do this effectively with sunset provisions. Sunset provisions hold
Congress accountable for reexamining and determining the effectiveness
and impact of the PATRIOT Act.
As a member of the Permanent Select Committee on Intelligence, I hold
this oversight responsibility as one, if not my most, important
function. Let me say up front that I think the PATRIOT Act provides
essential tools for law enforcement authorities that were not available
before the 9/11 attacks. These tools are essential to identifying and
tracking terrorists inside the United States.
The House Permanent Select Committee on Intelligence held two open
hearings for the PATRIOT Act. These hearings led me to conclude that
the PATRIOT Act, while good, is not perfect. Additional time is needed
to assess many of these provisions' effectiveness and impact on civil
liberties, and that is why we need to call for sunsets.
It is clear to me that we still face serious threats and we need some
of the powers of the PATRIOT Act. Sunset provisions are important
because they allow for review and oversight. Oversight allows us to
protect civil liberties; but more importantly, it allows us to enhance
law enforcement tools to keep pace with the terrorists.
Mr. HOEKSTRA. Mr. Chairman, I yield 1 minute to the gentleman from
Connecticut (Mr. Shays).
Mr. SHAYS. Mr. Chairman, the Cold War is over and the world is a more
dangerous place. The strategy that we used to have of containment,
react and mutually assured destruction went out the window on 9/11.
Lord, it probably went out earlier, we just did not get it.
We need now to be able to detect in order to prevent, and our
intelligence community needs the capability and the tools so they can
detect and prevent.
We are not going to be able to harden a subway site, a bus station, a
train station. We can have more people, dogs, cameras, lights, we can
do a lot of things to help, but we cannot stop it unless we have the
tools. We do not want to use the criminal means to go after terrorists
because you have to wait until the crime has been committed. We want to
prevent not a crime from being committed; we want to prevent a
terrorist attack from being committed. So give them the tools.
The PATRIOT Act does it. We have seen it operate for 4 years. It has
been amazing how well it has operated.
When people talk about libraries, why in the world would we want to
make a library a free terrorist zone? We allow our forces to go in for
a crime in a library. Why should they not be allowed to go in for a
terrorist issue?
Ms. HARMAN. Mr. Chairman, I yield 1 minute to the gentleman from
Virginia (Mr. Moran).
Mr. MORAN of Virginia. Mr. Chairman, the devastation of 9/11 shook
our collective consciousness to the core; but it should not have
shattered the foundation that defines who we are as a people and serves
as a beacon of individual rights and liberties throughout the world.
Our Nation has been able to overcome the challenges of the past by
proving to ourselves and to the world around us that our rights and our
values are the indispensable conditions of being an American. If we
allow the threat of fear and terror to undermine our civil liberties,
we will have failed not only the Founding Fathers who bestowed upon us
the philosophical foundations of this great Nation, but more
importantly, we will have failed the future of America as the last
great hope of mankind.
{time} 1430
Mr. Chairman, an unforeseen consequence of these infringements on
American citizens' civil liberties is the erosion of our standing as
the international leader of the rights of people. With each fundamental
mistreatment of our own citizenry, we broadcast an image around the
world that will, in fact, come back to haunt us. We will become what we
deplore: a hypocritical pseudo-democracy of freedoms granted from the
government down instead of from the people up.
Mr. Chairman, do not rewrite our precious Bill of Rights. Vote
against this bill just as our Founding Fathers would have.
Mr. HOEKSTRA. Mr. Chairman, I reserve the balance of my time.
Ms. HARMAN. Mr. Chairman, I yield 1 minute to the gentleman from New
York (Mr. Engel).
Mr. ENGEL. Mr. Chairman, I thank the gentlewoman for yielding me this
time.
Mr. Chairman, I voted for the first PATRIOT Act, and I strongly
supported the creation of the Homeland Security Department and have
voted for every large increase in intelligence, homeland security
funding, and defense funding.
But I am very troubled here. I am very troubled by the fact that we
are
[[Page H6239]]
eliminating the sunsets. I am very troubled by the fact that the
administration and the leadership here are just going full steam ahead
without listening to the very sincere problems that many of us have
with the erosion of civil liberties. I do not think we should be trying
to save our freedom by killing the safeguards that keep our liberties.
These are very serious issues.
The FBI can get a court order to demand confidential medical and
financial records and gag their doctor or banker from telling them.
They can even search people's homes and not tell them until weeks or
months later. We have had many colleagues talk about the problems with
library records and bookstore records. These are very serious civil
liberties problems.
And it is not on the abstract. There are people like me who support a
strong defense. There are people like me who support strong
intelligence and homeland security funding. But this is a balancing
act, and my fear is that we have gone too far.
The administration should listen to us, have a moderate bill, have
sunsets, and then we could all vote for this bill.
Ms. HARMAN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, as prior speakers on our side have made clear, we
should be mending it, not ending it. That is my view under this
legislation.
Mr. Chairman, I yield the balance of my time to the gentlewoman from
California (Ms. Pelosi), minority leader and my predecessor as ranking
member on the Permanent Select Committee on Intelligence.
Ms. PELOSI. Mr. Chairman, I thank the gentlewoman for yielding me
this time, and I salute her for her extraordinary leadership on issues
relating to the national security of our country, her excellent
leadership as the ranking member on the Permanent Select Committee on
Intelligence, and her important comments today.
I also salute the gentleman from Michigan (Mr. Conyers) and commend
him for being such a guardian of our Constitution. Mr. Chairman, we
take an oath of office to protect and defend the Constitution. No one
is more committed to that oath than the gentleman from Michigan (Mr.
Conyers). I thank him for his tremendous leadership.
I join them and each and every one of our colleagues in expressing
our admiration for the people of Great Britain for their strength and
their courage. Together our two nations will defeat terrorism, and we
will do so by pursuing real security measures and by providing law
enforcement the tools they need.
Mr. Chairman, as we close debate on this important bill, I want to
thank again the gentleman from Michigan (Mr. Conyers), the gentlewoman
from California (Ms. Harman), and so many other colleagues on both
sides of the aisle for their thoughtful consideration of this very
important matter. I am very impressed by the comments of the gentleman
from Virginia (Mr. Boucher), who has contributed enormously to this
debate.
Our first responsibility to the American people is to provide for the
common defense, to protect and defend the American people. In doing so,
we must also protect and defend the Constitution, as I mentioned. We
must pursue real security measures that prevent terrorism. We must make
a strong commitment to homeland security. And we cannot, because of any
negligence in terms of protecting the American people in terms of
homeland security, take it out on their civil liberties.
Our Founding Fathers in their great wisdom understood the balance
between security and liberty. They lived at a time when security was
all about homeland security. The war was fought on our shores and
continued into the War of 1812 here. And so they knew that in order to
have a democracy and to have freedom and to have liberty and to ensure
it and to protect the people, they had to create that balance.
Today we are considering the extension of certain provisions of the
USA PATRIOT Act. I want to add my voice to those who have made it clear
to this body that the PATRIOT Act is the law of the land. Ninety
percent of it is in the law. About 10 percent of it, 16 provisions, are
what we are considering today. They are the provisions that were
considered controversial 4 years ago when the bill was passed. And
because they were controversial, in a bipartisan way, these provisions
were sunsetted. There was a limit to how long they would be in effect.
I supported the bill because of these sunset provisions and because of
the rigorous oversight that was promised.
We have not seen that oversight. It simply has not happened in an
effective way. And today there is an attempt on the part of the
Republicans to eliminate the sunset of 14 of the 16 provisions and on
the two remaining provisions to have a sunset of 10 years. That is a
very, very long day when you are curtailing the liberties of the
American people.
I again listened intently to the gentleman from Virginia (Mr.
Boucher) when he described in detail the serious constitutional issues
concerning section 505, national security letter orders, by which
government possesses power to seize citizens' medical and other
personal records without notice, without the ability to challenge these
orders, and without meaningful time limitations. And for this reason, I
will join the gentleman from Virginia (Mr. Boucher) in opposing this
legislation but with the hope that it will be improved in conference
and then, when it comes back to this body, that we will be able to all
support a PATRIOT Act extension that protects the American people,
gives law enforcement the tools they need without seriously curtailing
the privacy and civil liberties of the American people.
I think it is important to note that the bill before us fails to
ensure accountability. Again, when Congress voted for this 4 years ago,
Members clearly understood that it would be accompanied by strong
congressional oversight so that the implementation would not violate
our civil liberties. In fact, the Attorney General has admitted that
the information on its use of the PATRIOT Act has not been forthcoming
to Congress in a timely manner. If not for the sunset provisions, there
is no doubt that Congress would not have even received insufficient
information we have received to date.
Today we are deciding whether the government will be accountable to
the people, to the Congress, and to the courts for the exercise of its
power. It is about whether broad surveillance powers that intrude on
Americans' privacy rights contain safeguards and actually materially
enhance security to target terrorists and those who wish to harm the
United States, not needlessly intrude on the constitutional rights of
innocent and law-abiding American citizens.
Unfortunately, Republicans refused to permit amendments that would
have extended the sunset by 4 years and created sunsets for the
national security letter provisions to ensure that these provisions
would never be abused. Perhaps they thought that these amendments would
have been too appealing to the many Members of this House on the
Republican side who are strong supporters of privacy rights for the
American people and they did not want these amendments to pass. For
whatever reason, the American people are not well served by not having
as open a debate with the opportunity for these sunset provisions to be
considered. These amendments should have been considered as a minimum
part of any effort to improve the PATRIOT Act and this bill.
USA today said in an editorial: ``Congress has an opportunity to . .
. ensure'' that these provisions ``remain temporary, the best way to
monitor the law's use and keep law enforcement accountable.''
We have a duty to protect the American people from terrorism but also
to protect law-abiding citizens from unaccountable and unchallengeable
government power over their personal lives, their personal records, and
their thoughts. Because I believe this bill fails to meet these
objectives, as I said, I will oppose it today with the hope that there
will be an improved bill coming from the conference committee.
Again, our Founding Fathers left us with the ever present challenge
of finding the balance between security and liberty. It is the story of
America. We must honor their legacy in however we vote today. I would
hope that even those who support the bill do so in the hope that it
will come back a better bill from conference. All Members should honor
their oath of office and
[[Page H6240]]
carry out their duty to protect and defend our Nation while protecting
and defending our Constitution and our civil liberties.
I thank all who have participated in this very important debate and
hope that at the end of the day, and I hope it is not a day with a very
long sunset, but at the end of the day that we can all get behind a
PATRIOT Act extension that does respect the civil liberties of the
American people.
Again, I remind my colleagues, the PATRIOT Act is the law. The
sunsetted provisions are what are being considered today. The sunsets,
by and large, have been removed or extended to such an extent that they
do not even matter, and we can do better. We have an obligation to do
better for the American people.
Mr. HOEKSTRA. Mr. Chairman, as we close general debate on the U.S.
PATRIOT Act, I yield 1 minute to the gentleman from Wisconsin (Mr.
Sensenbrenner), the author of the bill, chairman of the Committee on
the Judiciary.
Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman for yielding
me this time.
After listening to the speech of the distinguished minority leader, I
have reached the conclusion she has not read the bill. She has not
looked at the oversight that the Committee on the Judiciary has done
over the last 3\1/2\ years.
We have an oversight record of bipartisan letters sent to the Justice
Department, Inspector General's reports, and hearings that have a stack
of paper that is about 2 feet high. In this bill we have had 12
hearings with 35 witnesses, people who have come from all over the
spectrum; and 13 of the 16 sections of the PATRIOT Act that are
sunsetted are not controversial. The three controversial sections, two
of them are sunsetted; the third one, as a result of some of the
testimony, has been amended, and that is the delayed notification
warrants.
The fact of the matter remains that no federal court has found that
any of the 16 sunsetted sections are unconstitutional, and the
Inspector General, who is required by the PATRIOT Act itself to report
to the Congress twice a year, has not found any civil liberties
violations.
Let us stick to the facts. Let us stick to the result of the
oversight. Let us stop the hyperbole. And let us stop the scare tactics
that seem to surround the debate of those who are opposed to this law
for whatever purpose.
Mr. HOEKSTRA. Mr. Chairman, I yield myself the balance of my time.
The greatest responsibility of the intelligence community is to
protect our country from attack. Today's debate should flow from this
simple premise which should not be controversial, contentious, or
partisan.
The 9/11 attacks have led us to war, to war with an unconventional
enemy that hides literally around the globe. The full energies of the
intelligence community are directed to finding and monitoring that
enemy abroad, but our most pressing and immediate concern is with those
foreign terrorists who may be even closer to home, those within the
borders of the United States. The USA PATRIOT Act has provided basic
and fundamental tools to investigators to help them find foreign spies
and terrorists who may seek to harm our Nation.
The continued acts of alleged terrorism in London today should
continue to highlight the urgency of these efforts and the critical
nature of the PATRIOT Act authorities. Within days of the first London
bombings, British authorities were able to rapidly identify the bombers
and follow their trail to other terrorists. The PATRIOT Act would be
essential to do the same in the United States to investigate or prevent
an attack.
{time} 1445
By now, you have all seen the chilling photograph of the very first
group of London bombers to gather in a rail station. In the United
States the authorities of the PATRIOT Act likely would have been used
to obtain that photograph.
In the London investigation, there has been extensive cooperation
between the London Metropolitan Police and the British intelligence
agencies. In the United States, that cooperation would not be possible
without the PATRIOT Act.
British investigators then obtained leads from a terrorist phone to
tie them to the coconspirators of the first group of bombers. In the
United States, the authorities of the PATRIOT Act likely would have
been used to obtain those records.
Mr. Chairman, our counterterrorism investigators in the intelligence
community can do truly remarkable work to find terrorists and to piece
together the puzzle of their networks, but to do that they need modern
legal authorities to deal with modern threats.
Behind all the rhetoric, the PATRIOT Act is simple, sensible,
reasonable and necessary. I urge all Members to support the
intelligence community in its effort to fight terrorism. Support this
bill and keep America safe.
Ms. KILPATRICK of Michigan. Mr. Chairman, I rise today to oppose H.R.
3199, the USA PATRIOT and Terrorism and Prevention Reauthorization Act.
I want to emphasize at the outset that I share the concern of my House
colleagues that it is essential to protect our Nation and its citizens
from terrorists seeking to harm our homeland and its citizens. I agree
with my colleagues that no safe harbor should be available to
terrorists. There should be no doubt that I wholeheartedly support
enabling law enforcement officials with the authority to surveil and
prosecute terrorists. But it is critical that we resist the temptation
to develop laws that assault the constitutional protections afforded to
Americans.
I am alarmed about the scope of a number of provisions in the bill
that are likely to lead to the abuse of personal freedoms enjoyed by
Americans. Section 215, Seizure of Records, causes me great concern.
This provision allows the FBI, based on the premise of conducting a
terror investigation, to obtain any record, after receiving approval
from a secret Foreign Intelligence Surveillance Act, FISA, Court. My
concern is that law enforcement agencies can engage in such activity
without meeting the standard legal threshold of ``probable cause'',
thereby leading to potential cases of abuse.
I am also very concerned about the ability of law enforcement
agencies to conduct ``Roving John Doe Wiretaps''. Under this scenario,
criminal investigators can obtain wire tap authority to employ devices
that roam with someone who has been designated as involved in terrorist
activity; that device can be attached to an instrument that can be
transported through multiple jurisdictions.
Section 213 that allows for ``Sneak and Peek'' authority related to
searches and seizures. This is a provision that allows for run-of-the-
mill criminal investigations to be employed while conducting the war on
terrorism. The problem with this provision is that 90 percent of the
searches are used for drug and fraud cases and not for terrorism. I am
concerned about the lack of oversight that could apply to these types
of investigations.
I recognize that some of the provisions of the PATRIOT Act have
served a useful purpose and are scheduled to end. The process of
reviewing provisions and determining whether to extend them allows the
House to evaluate the effectiveness and appropriations of the
provisions. Two of the provisions in this bill are now being scheduled
to extend for 10 years as opposed to the 4 years in the expiring
legislation. In this scenario, a flawed provision could extend 6 years
beyond the normal time frame. Fourteen sections of H.R. 3199 bill will
become permanent, and will have virtually no oversight.
I continue to have great reservations about the use of National
Security Letters, NSLs. National Security Letters are applicable within
Section 505. The NSLs deny individuals due process by barring targets
of investigations access to court and the right to challenge the NSLs.
The NSLs allows institutions, i.e. banks, Internet Service Providers,
ISPs, to divulge critical information about individuals under
investigation. Private information about an individual can be shared
with law enforcement, but the organization would be ``gagged'' from
revealing its efforts. This is a terribly flawed and wrong process.
Mr. Chairman, I content that it is essential to protect the
constitutional rights of American citizens as we engaged in the ongoing
war on terrorism. I urge my colleagues to stand up for the Bill of
Rights and resist the temptation to curtail those rights in our
collective pursuits to develop legislation to counter the threats posed
by terrorists. My review of H.R. 3199 causes my great concern that we
are undermining the civil liberties of Americans. I stand as a patriot
for America and our Constitution, and in opposition to H.R. 3199. I
urge my colleagues to join my in defeating this measure. I support
sending this over-reaching legislation back to committee, and ask the
Judiciary Committee to come back with a better bill that does not shed
our civil liberties that are guaranteed in the Constitution. It is
vital that we
[[Page H6241]]
address terrorism specifically, while simultaneously ensuring that
these statutory provisions continued to be forced to comply with the
legal threshold of probable cause.
Mr. DeFAZIO. Mr. Chairman, as we learned here on 9/11 and in London
today and on
7/7, we must crack down on terrorism, and we must ensure that law
enforcement officials have the tools they need to assess, detect and
prevent future terrorist attacks. However, I don't believe we have to
shred the Constitution and Bill of Rights in order to fight terrorism.
We must be vigilant that the rights and liberties we are fighting to
protect are not jeopardized in the name of the war against terrorism.
Regrettably, H.R. 3199, the USA PATRIOT Act and Terrorism Prevention
Reauthorization Act, does not provide adequate protections for the
civil liberties of law abiding citizens and I must rise in opposition
to the bill.
When the House considered the original USA PATRIOT Act in 2001, I
expressed concerns with the bill both for substantive and procedural
reasons. And, unfortunately, I have both substantive and procedural
concerns with this reauthorization bill, as well.
With that said, I support a number of provisions in H.R. 3199. Law
enforcement officials need tools to find and track domestic criminals
and international terrorists. Federal law has not kept pace with
emerging technological and communications systems, so I support
judicially approved wire-taps to obtain email communications and
internet records related to potential terrorist offenses.
I also support provisions which authorize law enforcement officials
to share information with foreign intelligence officials. Allow
judicially approved wire-taps on cell phones and disposable cell
phones, permit judicially approved seizure of voice mail and not make
permanent the provision making it a federal crime to provide material
support to terrorists, among other meritorious provisions.
However, as I mentioned earlier, I also have very serious concerns
with a number of other provisions in the bill. Many of the provisions
in the bill that expand law enforcement authority to conduct domestic
intelligence gathering, either do not require judicial review, or
require that law enforcement only assert relevance to an investigation,
rather than show probable cause that the information is relevant to a
terrorist investigation. These expanded powers go a long way toward
tearing down protections that were put in place in the post-Watergate
era when we learned of presidential abuses of domestic intelligence-
gathering against individuals because of political affiliation or
citizen activism.
I am particularly concerned with a provision authorizing national
security letters, NSL's, which allow law enforcement officials
unlimited access to business and personal records without any sort of
judicial oversight. This provision is extraordinarily broad and
intrusive and could apply to any tangible records on any and all
Americans whether or not they are suspected of a terrorist act. Prior
to the Patriot Act, NSL's could be used to get records only when there
was ``reason to believe'' someone was an agent of a foreign power. Now
they are issued simply when an agent asserts that it could be relevant
to an investigation. According to the Department of Justice, this new
power has been used hundreds of times since the USA PATRIOT Act was
signed into law in 2001. A Federal court has found this authority to be
in violation of the 1st and 4th amendments of the Constitution, but the
administration continues to use it, and this bill would sanction this
extraordinary expansion of unchecked governmental authority.
I am also concerned that the bill extends the government's so-called
``sneak and peek'' authority which allows the government to conduct
secret searches and seizure of property without notice, in violation of
the 4th amendment. This authority has also been used hundreds of times
since enactment of the USA PATRIOT Act, including against Brandon
Mayfield in Portland who was suspected of being involved in the Madrid
bombings. Mr. Mayfield was later exonerated of all charges related to
the bombings because it was shown that the FBI based its investigation
on incomplete and faulty information. But his life was changed forever
as a result of the investigation and intrusive searches, and under this
bill, it could happen to other law abiding citizens.
I am disturbed that the bill extends many of these controversial
provisions either permanently or up to 10 years, even though Congress
has not been properly provided information on the sue of many
provisions of the Act to date. Without that information, it is
difficult to know how this new law enforcement authority is being used,
whether it's necessary at all, or whether it needs to be modified to
protect the civil rights and liberties of law abiding citizens. We know
of some abuses that have occurred under the act, like the Mayfield
case. However, the Administration has refused to provide information on
some of the most broad and intrusive powers under the Act, and the bill
should provide for adequate disclosure and proper oversight of these
provisions, but it doesn't.
Finally, I am concerned that the bill is being brought up with
limited debate and amendments. I am particularly concerned that the
Republican leadership refused to allow a vote on an amendment to remove
library and bookstore records from Sec. 215 of the Act, which grants
law enforcement officials the authority to seize business records
without notification. A similar amendment was approved by the House of
Representatives earlier this summer by an overwhelming vote of 238-187.
I would like to be able to support this bill, and as I said earlier,
I support a number of provisions in the bill. I also believe we could
have reached an agreement on protections to address most of my concerns
with the bill by providing for judicial review and shorter-sunset
provisions. Unfortunately, the leadership chose to bring a bill to the
floor which simply gives too much broad, intrusive and unchecked
authority to the federal government, and does not provide for adequate
legislative oversight of how these powers are being used, therefore, I
cannot support the bill. I hope the Senate and conference committee
will address these concerns.
Ms. ROYBAL-ALLARD. Mr. Chairman, I rise in opposition to H.R. 3199,
the reauthorization of 16 expiring sections of the PATRIOT Act, which
weakens the safeguards currently in place to protect innocent Americans
from sweeping searches and surveillance by the government.
I am not opposed to the original PATRIOT Act. In fact, I supported
the original bill passed in 2001 because it included provisions which
were legitimately needed by law enforcement in order to better pursue
terrorists. Commonsense improvements have been made to update our
intelligence and law enforcement capabilities, and to reflect modern-
day realities. These will remain intact, and today's vote will not
affect such core provisions of the PATRIOT Act. Whether or not H.R.
3199 passes, 90 percent of the PATRIOT Act will continue to be
enforced.
My objection, however, is that H.R. 3199 retains numerous
objectionable provisions of the PATRIOT Act that intrude on our privacy
and civil liberties, have been subject to repeated abuse and misuse by
the Justice Department, and have little to do with combating terrorism.
This legislation does nothing to address the many unilateral civil
rights and civil liberties abuses by the administration since the
September 11 attacks. Nor does the bill provide law enforcement with
any additional real and meaningful tools necessary to help our Nation
prevail in the war against terrorism.
Since 2002, 389 communities, including Los Angeles, have passed
resolutions opposing parts of the PATRIOT Act, representing over 62
million people. This outcry from America is due to the repeated and
serious misuse of the legislation by the Justice Department. Consider
that the PATRIOT Act has been used more than 150 times to secretly
search an individual's home, with nearly 90 percent of those cases
having had nothing to do with terrorism. It was used against Brandon
Mayfield, an innocent Muslim American, to tap his phones, seize his
property, copy his computer files, spy on his children, and take his
DNA, all without his knowledge. Furthermore, because of gag
restrictions, we will never know how many times it has been used to
obtain the reading records of average Americans from libraries and
bookstores.
H.R. 3199 also extends or makes permanent 16 provisions of the
PATRIOT Act concerning the government's expanded surveillance
authorities, which are otherwise scheduled to sunset on December 31,
2005. It is simply irresponsible to make these provisions permanent
when there continues to be wide spread concern that these sections of
the PATRIOT Act can lead to violations of individual civil liberties,
as well as tread on our country's professed support of basic civil
rights for all individuals. Preserving a 4-year sunset for these 16
provisions in the PATRIOT Act is one of Congress's strongest mechanisms
for maintaining oversight and accountability over expanded government
controls that could potentially undermine civil rights and civil
liberties. We are talking about critical issues that will set the
precedence for the rights of people in our country for many years to
come.
The Intelligence Committee tried to offer sensible amendments to the
bill, but was denied by the Republican-controlled Rules Committee. One
amendment would have tightened the ability of the FBI to conduct roving
wiretaps to ensure that only terror suspects--not innocent Americans--
are wire-tapped. Another amendment would have included the sunset
provisions originally in the PATRIOT Act to promote accountability and
congressional oversight. A final amendment would have prohibited the
FBI from using the broad powers to get bookstore or library documentary
records about any patron.
Even though some in our government may claim that civil liberties
must be compromised in order to protect the public, we must be wary
[[Page H6242]]
of what we are giving up in the name of fighting terrorism. Striking
the right balance is a difficult, but critically important task.
History has taught us to carefully safeguard our civil liberties--
especially in times of fear and national outrage.
The lessons of September 11 are that if we allow law enforcement to
do their work free of political interference, if we give them adequate
resources and modern technologies, we can protect our citizens without
intruding on our liberties. We all want to fight terrorism, but we need
to fight it the right way, consistent with the Constitution, and in a
manner that serves as a model for the rest of the world. Unfortunately,
H.R. 3199 does not meet those tests and, without the critical
safeguards of sunset provisions, does not warrant reauthorization.
Mr. DeLAY. Mr. Chairman, I rise in strong support of the
reauthorization and extension of the USA PATRIOT Act, the provisions of
which have protected the American people and our soil from terrorism
since their enactment 4 years ago.
The PATRIOT Act has been instrumental to our prosecution of the war
on terror since
9/11, and, specifically, instrumental to the prosecution of terrorists
who have threatened our homeland.
Our law enforcement and intelligence communities have vigorously and
appropriately used the PATRIOT Act to investigate, charge, and
prosecute terrorists.
Five terrorist cells in Buffalo, Detroit, Seattle, Portland, and
northern Virginia have been disbanded. Terrorists around the world have
been brought to justice. The notorious wall between law enforcement and
intelligence gathering organizations has been broken down. Prosecutors
and investigators have been given more tools to go after terrorists
without the outdated redtape that, prior to
9/11, always hamstrung such efforts. Loopholes have been closed, safe-
havens have been shut, and the war in being won. Meanwhile, civil
liberties are being protected.
Opponents of the PATRIOT Act suggest that we have an either/or choice
when it comes to safety and civil liberties, but the PATRIOT Act--the
ultimate legislative boogey-man for conspiracy theorists--has worked
exactly as the American people were told it would be.
To date, 4 years after Big Brother supposedly imposed this draconian
usurpation of liberty on the American people, no one has suggested a
single instance of a single person's civil liberties being violated.
This point bears repeating: on one, not the Justice Department, not
the ACLU, not even moveon.org has produced evidence of a single,
verifiable PATRIOT Act civil liberties abuse.
It just hasn't happened.
Neither has the government's abuse of the PATRIOT Act's ``delayed
notification search warrants,'' which since the Act's passage have
comprised fewer than 2 of every 1,000 search warrants sought by the
Justice Department.
The USA PATRIOT Act, then, Mr. Speaker, has been a boon to the law
enforcement and intelligence community, a crushing blow to our
terrorist enemies--212 more of whom, I repeat, are now behind bars--and
a protector of security and freedom to the American people.
Of course, this law should be re-examined. That's why we've subjected
it to such vigorous scrutiny: Six Inspector General reports; 12
Committee hearings, just since this April; 41 witnesses, 15 of whom
were called by the Democrats; 43 proposed amendments in Committee, 8 of
which were approved.
The American people have had ample opportunity to witness the PATRIOT
Act in action, and in the 4 years since its passage, our Nation has
been safer, our civil liberties more secure than ever, and our enemies
have been hunted, caught, and prosecuted.
We are winning the war on terror, and the PATRIOT Act is a big reason
why.
I urge all members to protect the American people, protect civil
liberties, and extend the PATRIOT Act.
Mr. PORTER. Mr. Chairman, I rise today to express my support for the
PATRIOT Act. As we all learned on September 11, 2001, terrorists will
use any and all means available to them to attack the United States of
America.
Since its passage following the September 11 attacks, the PATRIOT Act
has played a key role in a number of successful operations to protect
innocent Americans from terrorists. The PATRIOT Act removed major legal
barriers that prevented the law enforcement, intelligence, and national
defense communities from talking and coordinating their work to protect
the American people and our national security. Now FBI Agents, Federal
prosecutors, and intelligence officials can protect our communities by
``connecting the dots'' to uncover terrorist plots before they are
completed. Simply put, the PATRIOT Act allows the United States to
become proactive, rather than reactive.
Mr. Chairman, the simple truth is that while key provisions of the
PATRIOT Act are set to expire, as we have learned twice in the past two
weeks from events in Great Britain the terrorist threat that faces the
world will not expire.
Southern Nevada is visited by over 35 million people each year; many
of these tourists are our friends from foreign countries. Unfortunately
we have learned that mixed in with these friendly tourists are some who
wish to inflict harm on our Nation. This sentiment is supported by the
fact that we now know that planning meetings of the 9/11 hijackers took
place in Las Vegas.
While this may not be a perfect bill, I do believe that the
legislation before us today reflects a compromise that includes the
proper balance between security and privacy to face the challenges of
the current world we live in as well as the necessary safeguards to
protect our fellow citizens against an over-encroaching government.
I understand and appreciate the privacy concerns that have been
expressed by many and will continue to protect civil rights and insist
that the proper and regular oversight exists when possible
infringements on Americans' civil rights are concerned.
Mr. HONDA. Mr. Chairman, I rise today in opposition to H.R. 3199, the
USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005. While
Congress should be revising the flawed aspects of the PATRIOT Act, we
are instead poised to make permanent the provisions that were supposed
to sunset at the end of this year.
My fear is that the actions of our government pursuant to the PATRIOT
Act amount to nothing short of a taking, not a taking of property,
rather of our rights and our liberties. For example, the House
Judiciary Committee Democrats have uncovered the following regarding
the Act:
It has been used more than 150 times to secretly search an
individual's home, with nearly 90 percent of those cases having had
nothing to do with terrorism.
It was used against Brandon Mayfield, an innocent Muslim American, to
tap his phones, seize his property, copy his computer files, spy on his
children, and take his DNA, all without his knowledge.
It has been used to deny, on account of his political beliefs, the
admission to the United States of a Swiss citizen and prominent Muslim
Scholar to teach at Notre Dame University.
It has been used to unconstitutionally coerce an Internet Service
Provider to divulge information about e-mail activity and web surfing
on its system, and then to gag that Provider from even disclosing the
abuse to the public.
It has been used to charge, detain and prosecute a Muslim student in
Idaho for posting Internet website links to objectionable materials,
even though the same links were available on the U.S. Government's web
site.
These are just a few of the incidents we know of, yet they are enough
to raise plenty of concerns in my mind. Because of gag restrictions, we
will never know how many times it has been used to obtain reading
records from libraries and bookstores, but we do know that libraries
have been solicited by the Department of Justice--voluntarily or under
threat of the PATRIOT Act--for reader information on more than 200
occasions since the 9/11 terrorist attacks.
Rather than making the provisions in question permanent, we should be
reviewing and amending the most intrusive of these provisions that are
subject to the sunset clause such as:
Sec. 215: Secret searches of personal records, including library
records. The bill does not provide a standard of individual suspicion
so that the court that examines these extraordinary requests can ensure
personal privacy is respected, and also falls short by failing to
correct the automatic, permanent secrecy order.
Sec. 206: ``Roving'' wiretaps in national security cases without
naming a suspect or telephone. The bill does nothing to correct this
overbroad provision of the Patriot Act that allows the government to
get ``John Doe'' roving wiretaps--wiretaps that fail to specify the
target or the device. The bill also does not include any requirement
that the government check to make sure its ``roving'' wiretaps are
intercepting only the target's conversations.
The Patriot Act originally had sunsets on some provisions so we could
reexamine the extraordinary powers that were given to the executive
branch, in a calmer atmosphere. Instead we are here today ignoring the
more troubling provisions such as: the ``delayed notice'' of a search
warrant, the intrusive ``national security letters'' power of the FBI,
and the overbroad definition of domestic terrorism.
There is no more difficult task I have as a legislator than balancing
the nation's security with our civil liberties, but this task is not a
zero sum game. By passing a bill that largely ignores the most serious
abuses of the PATRIOT Act, that ignores the abuse of power by the Bush
Administration, and which fails to give adequate resources and money to
those on the ``front line'' in the fight against terrorism.
[[Page H6243]]
Ms. DeLAURO. Mr. Chairman, there is no greater responsibility of
government than to protect its people from harm. That was the intent of
the PATRIOT Act--legislation authored a month after the September 11th
attacks 4 years ago. And like any bill quickly passed into law,
particularly one this expansive, the PATRIOT Act has worked well in
some respects, but less so in others, and in some cases, with
unintended consequences. All that is understandable, but making the
entire bill work well with the benefit of 4 years hindsight ought to be
the challenge before us today.
But this legislation is not the entire PATRIOT Act passed into law 4
years ago--it is only 16 provisions of that law, most of which were set
to expire or sunset. This year, we are failing to consider some of the
most ineffective and overreaching provisions of the PATRIOT Act. We are
making only the most modest changes to others. And, in the case of the
so-called ``sneak and peek'' provision, we are actually making matters
worse.
Indeed, under this bill, judges can order searches or seizures
without telling the targets for up to 6 months after the search. This
bill also expands authority to access medical records and bookstore and
library records. And even though it allows recipients of such subpoenas
to consult an attorney, there is no requirement that law enforcement
show that the information they are seeking is even part of a terrorism
investigation.
And while this provision will be revisited again in 10 years, almost
all the others are made permanent--access to e-mail and Internet
records, wiretap authority, the disclosure of Internet records in
emergencies, the use of search warrants to seize voice mail. These are
all fundamental matters of privacy--privacy we would all agree
terrorists are not entitled to, but the average American is.
By insisting 14 of the 16 expiring provisions in this bill be made
permanent, we are essentially abdicating our responsibility as Members
of Congress to make sure we strike the right balance of giving law
enforcement the tools they need to catch terrorists while still
upholding the basic rights to which every American is entitled.
Mr. Chairman, this bill is a matter of security--of homeland
security, national security and the security of every American's right
to privacy. Let us honor our obligations and uphold each of those
responsibilities.
Mr. DINGELL. Mr. Chairman, I rise in strong opposition to H.R. 3199.
This bill does very little other than to make permanent, onerous
sections of an onerous law.
Four years ago, Congress passed and the President signed into law the
USA PATRIOT Act. Substituted in the dark of night, the Administration's
bill was inserted as the final bill and became law with very little
Congressional deliberation or consideration. I was appalled by the
process we used then and am only slightly more comforted now.
We are considering making 14 of the 16 provisions in the PATRIOT Act
permanent, and making the other 2 provisions semi-permanent. Are we
going to yield more of our institutional power by granting the
permanency of these provisions? We must remain vigilant against
terrorism, but we must also remain vigilant against abuses of power
that curtail Americans' civil liberties in a time of war.
Mr. Chairman, I have heard a lot during the last four years that we
will not yield to the terrorists. That we will fight tyranny with
freedom and democracy, and the power of our ideas will prevail. I
agree.
Yet, today, we are considering limiting American freedoms by
extending these sections of the PATRIOT Act permanently. As a former
prosecutor, I understand the need for tools to prosecute those who
would do us harm. However, the law that was passed four years ago and
the bill we consider today go too far.
We must provide commonsense tools to prosecutors, but we must weigh
the important needs to safeguard liberty. We must not make these
temporary provisions permanent while we remain at war. What will
generations to come think when they have seen we have permanently
lowered the bar in protecting their civil liberties?
Mr. Chairman, I am reminded of a very wise saying by one of our
founding fathers, Benjamin Franklin. He said ``They that can give up
essential liberty to obtain a little temporary safety deserve neither
liberty nor safety.''
I will vote against this bill and urge my colleagues to do the same.
Mr. FARR. Mr. Chairman, I rise in strong opposition to the PATRIOT
and Terrorism Prevention Reauthorization bill. This bill tramples on
the Bill of Rights in the name of patriotism.
To be patriotic means to be loyal and devoted to one's country. As
Thomas Paine once said, ``It is the duty of the Patriot to protect his
country from his government.'' We are all Patriots today in the finest
sense of the word, but just because some of us want to ensure that
Congress retains its legislative oversight over these draconian
provisions, some will call us unpatriotic. To quote Thomas Jefferson,
``Dissent is the highest form of patriotism''.
While not one of us in the Chamber takes lightly our Oath to protect
and defend the United States, the permanent extension of the Patriot
Act, as the expense of our civil liberties, will not in and of itself
make our country safer.
I voted against the original PATRIOT Act that was hastily passed in
October 2001. The same concerns regarding the abuse of power still
exist. With such broad, sweeping provisions as roving wire taps and
sneak and peek searches, Congress must retain its ability to exercise
legislative oversight to ensure the civil liberties of the people are
upheld. The provisions of the misnamed Patriot Act should be
reauthorized periodically, not made permanent.
This Administration consistently hides behind the fear of terrorism
to achieve their legislative agenda. In this case, they are trying to
convince the American people that giving up their civil liberties is
necessary to combat terrorism. My constituents remain unconvinced. In
my district, the local governments of Pacific Grove, Salinas, Santa
Cruz, and Watsonville, California have all passed resolutions
expressing their concerns with the anti-privacy and anti-liberty
portions of the Patriot Act.
Mr. Chairman, homeland security means protecting the civil rights of
Americans.
Mr. UDALL of New Mexico. Mr. Chairman, almost four years ago, our
country was traumatized by the vicious attacks on September 11, 2001.
We will never forget that day or the days immediately following the
attacks, and once it became clear who was behind the attacks and what
their motives were, we realized that we were facing a threat unlike any
other. In the years since, we have seen these senseless attacks
continue on our allies across the world. As a former state attorney
general, I fully understand the need to balance the security of our
nation and the liberties of our citizens. The gravity of the situation
is not lost on me, or any of my colleagues in this chamber.
On October 24, 2001, a justified sense of urgency resulted in an
unjustifiably rushed vote on the PATRIOT Act. Many members had
outstanding questions about the bill, which the Rules Committee put in
place of another bill that had been passed by the Judiciary Committee.
In the years since that bill passed, over 374 cities, towns, and
counties in 43 states have passed resolutions expressing concern about
the PATRIOT Act or an extension of it. In New Mexico alone, ten cities
and four counties have passed resolutions. I have received over 3,000
letters and emails from constituents on this issue, and I have met with
hundreds of constituents in my district to discuss the PATRIOT Act in
town hall meetings. I have found that Americans of all stripes share my
concerns about the Act.
The long awaited House floor debate of this bill has arrived. Many of
my colleagues and I are eager to make some commonsense changes to this
law, and to bring to light our concerns. Unfortunately, the bill before
us today is just more of the same. It gives blanket reauthorization to
the bill with only very minor improvements. All but two of the expiring
provisions are made permanent, and 10-year sunsets are applied to
Sections 206 and 215, the roving wiretaps provision and the ``library
provision,'' respectively. All amendments brought to the Rules
Committee that would have shortened the sunset period, so that Congress
could continue to conduct important oversight and review of this
legislation, were not allowed a vote on the floor.
I brought two amendments to the Rules Committee, both of which were
rejected. The first, sponsored by Representative Bernie Sanders, would
have reined in what is probably the most notorious provision in this
bill--Section 215. This section grants law enforcement authorities
unprecedented powers to search, or order the search of, library and
bookstore records without probable cause or the need for search
warrants. Because these surveillance powers were cast so broadly and
the law prohibits them from revealing to the subject that an
investigation is occurring, librarians, storeowners and operators are
left in an impossible position. Just one month ago, this House passed
an amendment to the FY06 Science-State-Justice-Commerce bill denying
funding for this section. Why, then, does the majority insist on giving
this section a blanket renewal for 10 years? Librarians and library and
bookstore patrons in my district will have a difficult time
understanding why their concerns have not been heard by the House
leadership. Moreover, in July 2003, the American Civil Liberties Union
filed a case against the Department of Justice over Section 215 in a
Federal District Court in Detroit, Michigan. Despite promises by the
judge that she would issue a prompt ruling, the ruling is still pending
two years later. I am very concerned that this ruling has not yet been
issued.
I also brought to the Rules Committee, along with Representative
Carolyn Maloney and Representative Chris Shays, an amendment that would
strengthen the Privacy and
[[Page H6244]]
Civil Liberties Board created in last year's intelligence reform bill.
Unfortunately, in its current form, the Board does not have the tools
to adequately do its job. My amendment would have changed the Civil
Liberties Board to be an independent agency within the Executive
Branch, have true subpoena power, make full and frequent reports to
Congress, have access to information through privacy and civil
liberties officers, and have fair composition. It is our responsibility
to ensure that the Executive Branch has checks and balances, and I am
disappointed that this amendment was not allowed a vote today.
I must also express my grave concern about a section of the bill that
was not given a sunset, and thus has not been given the debate that I
believe it deserves. Section 213, known as the ``sneak and peek''
provision, allows federal agents to search homes and businesses without
giving notice for months. Changes to this section should have been
included in the bill before us.
Mr. Chairman, I will vote against this bill today not because I
oppose the PATRIOT Act in its entirety, but because I do not believe
this bill represents the will of the people or their representatives. I
think that if we were allowed a vote on an amendment to Section 215,
for example, a majority of members would probably support it. And I
think many members here would feel more comfortable attaching four-year
sunsets to the expiring provisions than permanently reauthorizing them.
But we will not be given that chance today.
In their final report, the 9/11 Commissioners brilliantly stated,
``The choice between security and liberty is a false choice,'' and that
``if our liberties are curtailed, we lose the values that we are
struggling to defend.'' We must continue to encourage debate on this
law, the events leading up to its passage, and the long-term
implications. Because the bill before us today does not reflect this
need, I will oppose it.
Mr. NEUGEBAUER. Mr. Chairman, I rise today in support of the USA
PATRIOT Act. Nearly four years ago and shortly after terrorists
maliciously killed thousands of Americans on September 11, 2001,
Congress passed the PATRIOT Act. This act provides law enforcement
officials the tools they need to save lives and protect this country
from future terrorist attacks. Today, we are at a critical point as
Congress considers extending 16 important provisions of the law.
I have looked carefully at the law and I have heavily weighed the
constitutional questions some have raised. In the end, I wholeheartedly
support all 16 provisions. I believe that the tools provided under the
law are consistent with our long cherished values and consistent with
our rights under the Constitution.
I especially support the provisions which take important steps to
ensure information sharing and cooperation among government agencies.
By providing these necessary tools, the PATRIOT Act builds a culture of
prevention and makes certain that our government's resources are
dedicated to defending the safety and security of the American people.
For decades, terrorists have waged war against freedom, democracy,
and U.S. interests. Now America is leading the global war against
terrorism. As President Bush has said, ``Free people will set the
course of history.''
Mr. CUMMINGS. Mr. Chairman, I rise in opposition to this bill, the
USA PATRIOT and Intelligence Reform Reauthorization Act of 2005, H.R.
3199.
Mr. Chairman, after the tragic events of September 11, every American
knows, in every nuance of the truism, that freedom is not free. I
firmly believe that in order to have security in our homeland we must
have a reasonable expectation of infringement of some of our civil
liberties. The stakes are too high to maintain a pre-9/11 mentality and
the threats of terrorism are too real. However, this bill crosses the
reasonableness threshold by abrogating rights guaranteed under the
Constitution without a corresponding increase in the real tools law
enforcement needs to fight the war on terrorism.
I believe that we should focus on securing our homeland, not by
infringing on civil liberties as outlined in the PATRIOT Act--but, by
securing our rail and transit systems, by securing our ports and
waterways systems, by securing our airspace, and by refining our
intelligence organizations for maximum outcomes, just to name a few.
But I digress.
Subsequent to passage of the USA PATRIOT Act, a hastily devised bill
brought to the floor 45 days after 9/11, I received many letters from
my constituents who applauded my voting against its passage. While they
were opposed to the bill, many were comforted by the fact that the
provisions would sunset and Congress would take a closer look when
clearer heads might prevail. As the sunset date approached for the more
troubling PATRIOT Act provisions, I received even more letters
concerned about the prospect of extending or making permanent the more
intrusive aspects of the USA PATRIOT Act.
I also received reports from people who believed that their rights
had been unduly violated under the PATRIOT Act. That is why I held a
PATRIOT Act Town hall earlier this ear to further examine the extent of
the problem.
Mr. Speaker, let me give you an example reported to my office.
Some months ago, a Maryland-based engineer of Iranian descent was at
work when the State Police showed up at his employer's doorstep and
started questioning him. Without explaining the reason for their
interrogation, they asked him where he had gone to school, where he had
lived, how many times he traveled internationally and whether he had
ever rented a car.
Then, they demanded that he hand over his laptop--equipment that
belonged to his employer--and, after some haggling, they took the
device without ever obtaining a warrant.
Later, the engineer (whom I'll call ``Mr. L'') was told that a former
police officer had seen a group of people who ``looked Middle Eastern''
driving around an airport and ``acting suspicious.''
Fortunately, Mr. L had proof that he was nowhere near the airport
during the time in question. He has since been cleared of any
wrongdoing.
Yet, Mr. L. remains convinced that his professional reputation has
been seriously damaged, and in all likelihood, he is correct.
Far too many Americans of ethnic descent can relate to Mr. L's story
of being accused of wrongdoing based only upon a racial or ethnic
``profile.'' Although our U.S. Constitution protects us against
unreasonable searches and seizures, we know that this guarantee has not
always been uniformly assured.
Sadly, the governmental intrusion into Mr. L's life seems to be one
of these cases. It was an erosion of his personal freedom clearly
allowed under the PATRlOT Act, which as Americans the rest of us take
lightly at our peril. Mr. L's story is not unique; the danger his
experience illustrates is not limited to Islamic Americans; and the
erosion of our freedom is not confined to investigations of terrorism.
Mr. Speaker, the expressed purpose of the PATRlOT Act was to assure
that U.S. law enforcement agencies would possess the legal tools that
they said they needed to protect us from acts of terrorism. From the
time of its initial passage, however, there has been serious concern
that the wider police powers granted to our law enforcement agents by
the legislation--as well as other assertions of executive power by the
Bush Administration--were not adequately balanced by sufficient
constitutional safeguards.
The purposes of this bill are the same and it suffers from the same
infirmities as its predecessor. As the Dissenting Views to Accompany
H.R. 1399 reports, and I paraphrase, ``there are numerous provisions in
both the expiring and other sections of the USA Patriot Act that have
little to do with combating terrorism, that intrude on our privacy and
civil liberties and that have been repeatedly abused and misused by
both the Justice Department and the Administration.''
These include, but are not limited to, the inadequate judicial
oversight permitted by this bill and the roving wiretaps targeting
innocent Americans--Americans not involved in terrorism in any way.
Further, the ``sneak and peak'' provisions authorize federal agents to
enter our homes, search them and even seize our property, notifying us
only after the fact.
It should come as no surprise that since 2002, 389 communities and
seven States representing over 62 million people have passed
resolutions opposing parts of the USA-PATRlOT Act. It may come as a
surprise however, that groups ranging the political spectrum from the
ACLU to Gun Owners of America are equally opposed to many sections of
the bill. They are concerned, like my constituents and many other
citizens around the country, that the PATRlOT Act has been used more
than 150 times to secretly search an individual's home, with nearly 90
percent of those cases having nothing to do with terrorism.
They are concerned that the PATRlOT Act has been used to coerce an
internet service provider to divulge information about e-mail activity
and websurfing of its members.
They are concerned that it has been used on innumerable occasions to
obtain reading records from libraries and bookstores--and that on at
least 200 occasions has been used to solicit reader information from
libraries.
They are concerned that they may be next for these unreasonable
intrusions.
Yet we never had a discourse on these issues. Unfortunately, again
the House process has been distorted to leave us to consider a one-
sided partisan bill. Instead of thoughtfully considering the tough
questions like: how much governmental power is truly required to
protect us and what constitutional freedoms are we going to leave in
place for our children and generations yet to be born, we consider a
partisan bill of which the Minority members inform they never received
the facts necessary to fully evaluate.
For this and other reasons, I decided to cosponsor the bipartisan
bill spearheaded by
[[Page H6245]]
Butch Otter and Bernie Sanders, the Security and Freedom Ensured Act of
2005, H.R. 1526, the SAFE Act.
Among other corrections to the PATRIOT Act, this bill would require
``specific and articulable facts'' (rather than a more generalized
suspicion) that a suspect is an agent of a foreign power when the
government wishes to seize records. It would require a far more
detailed justification before ``roving wiretaps'' could be utilized and
it would protect our library and bookstore records from unwarranted
inspection.
In addition, H.R. 1526 would re-define the new crime of ``domestic
terrorism'' in far more narrow terms, making it clear that our
traditional freedom to assemble and challenge governmental action must
not be chilled.
Although this bill does not resolve every concern about the USA
PATRIOT Act, I believe it represents a better beginning for the House
debate than the bill under consideration. Democrats and Republicans
alike are seeking to better protect the freedom of Americans--without
reducing our ability to protect ourselves against terrorist threats.
Since September 11, Americans have learned to accept some additional
intrusions into our privacy as the price that we must pay to protect
ourselves. Yet, we must also remain vigilant.
Mr. L.'s experience should be a lesson to us all. As we defend
freedom against foreign terrorism and promote freedom abroad, we must
be ever-mindful not to destroy the freedoms that make us America.
Mr. STARK. Mr. Chairman. I rise in strong opposition to H.R. 3199,
the USA PATRIOT and Terrorism Prevention Reauthorization Act, because I
swore to uphold the Constitution. The PATRIOT Act clearly violates all
Americans' Fifth Amendment right to due process and Fourth Amendment
guarantee against unreasonable search and seizure, among others. If the
Government takes our rights away in order to supposedly defend them,
what are we even fighting for?
Using the PATRIOT Act over the last four years, the Bush
Administration has monitored meetings of citizens who dare to criticize
their government. It has searched homes without warrants and listened
in on phone conversations without any reasonable justification.
If this is the price of security, now is a fair time to ask: what
security have we gained? The terrorist who mailed anthrax to the U.S.
Capitol and shut down a Senate office building for two weeks is still
at large, but a University of Connecticut graduate student who studies
anthrax in Petri dishes was charged with bioterrorism. The cargo that
rides aboard almost every commercial flight remains unsecured, but a
New Jersey man faces up to 20 years in prison under the PATRIOT Act for
looking at star's with his seven year old daughter because he shone a
laser beam on an airplane.
I am proud to represent one of the most diverse congressional
districts in the country. The people of the 13th District know that
your ethnicity, religion or country of origin is not indicative of your
commitment to community--or anything else, for that matter. That's why
cities across the East Bay were among the first in the nation to pass
resolutions condemning the PATRIOT Act. I stand with them in support of
those actions.
Mr. Chairman, searching my constituents' homes and not telling them,
collecting information about what they read, and tracking their e-mail
and web usage is a war on liberty to create a false sense of security.
To paraphrase one of our founding fathers, Ben Franklin, the nation
that sacrifices liberty for security deserves neither. I urge my
colleagues to join me in opposing this unpatriotic act.
Mr. OXLEY. Mr. Chairman, anyone who was serving in Congress on
September 11, 2001, will never forget the day. We watched television in
horror as the World Trade Center collapsed, and then were rushed out of
the U.S. Capitol when Flight 77 crashed into the Pentagon. President
Bush immediately challenged us to provide U.S. citizens with
protections against the new threat of worldwide terrorism, and within
weeks we responded with the USA PATRIOT Act.
As Chairman of the House Financial Services Committee, I was proud to
help author the antiterrorist financing provisions in the Act. My
committee has held numerous oversight hearings on the implementation of
the provisions since then. I can report progress. More than $147
million in assets have been frozen and roughly $65 million seized since
9/11. The U.S. has broken up suspected terrorist financing networks,
including one in my home state of Ohio. Our terrorist financing tools
were further augmented by the intelligence reform act approved in the
wake of the 9/11 Commission report.
As a former FBI agent, I have found other parts of the PATRIOT Act
just as vital in the defense of our freedoms. As we have been reminded
by the two rounds of bombings in London, the reality of terrorism
remains very much with us. The toll that these attacks take is so
terrible that the only acceptable approach is to prevent them in the
first place. To that end, today we are working to make permanent 14 of
the 16 expiring provisions of the PATRIOT Act.
I would note that one of the two provisions being extended for only
ten years rather than permanently concerns the use of ``roving
wiretaps.'' As one of the only Members of Congress who has conducted
undercover surveillance, I can tell you now that the need for this
authority will not go away. Tying intercept authority to an individual
rather than a particular communication device is simply common sense in
this era of throwaway cell phones and e-mail. Sunsetting this authority
sends the wrong message to our law enforcement agencies: it indicates
that our trust in them is incomplete at a time when their services have
never proven more important. They should have our full support and
every reasonable tool we can give them to help fight the Global War on
Terror.
The PATRIOT Act has been a success and we are safer for it. The law
has come under misguided criticism from some quarters, and I am
constantly answering questions from my congressional district in
response to myths surrounding the Act. There is absolutely no evidence
that the PATRIOT Act has been used to violate Americans' civil
liberties. Congress recognizes the delicate balance between deterring
terrorists and preserving our precious freedoms. I feel confident in
saying that terrorists make no such distinction. I support the
reauthorization of the PATRIOT Act and hope that we can continue to
work on remaining issues--including making the roving wiretap provision
permanent.
Mr. BLUMENAUER. Mr. Chairman, the PATRIOT Act was enacted in the wake
of the 9/11 terrorist attacks, rushed through the House as a suspension
bill the day after it was introduced. This process didn't permit the
public, let alone Congress, to fully understand it.
The original bill was rewritten in the Rules Committee instead of the
bipartisan bill that was unanimously passed out of the Judiciary
Committee. Luckily, there were a few sunset provisions that were
intended to help keep people honest and evaluate the impacts on the
public.
We have now been fighting the war on terror longer than World War II
with no end in sight. The policy decisions we make affect the lives of
everyday Americans. It is important to keep these policies narrowly
focused on items that are necessary for dealing with terrorism and
today's modern communication developments while not encroaching on
American's fundamental rights. This version is a missed opportunity to
narrow the provisions and time limit their applications.
The good news is the public is becoming more aware and involved.
Thirteen municipalities in Oregon, including Portland, have already
passed resolutions expressing their opposition to the PATRIOT Act.
It seems that the majority of Congress has at least some reservations
about this bill. There were more ``no'' votes than four years ago and a
bipartisan effort to provide more checks and balances is growing. The
Senate version will be better, making it likely that the fiscal
legislation will be an improvement over the existing law.
I will continue working to give voice to the concerns and the
experiences of Oregonians, as together we fight against terrorism and
protect the rights of each American.
Mr. SHUSTER. Mr. Chairman, I rise today in support of the renewal of
the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005
and strongly encourage my colleagues to join me in supporting this
important tool in the war on terror. It is vital that we continue to
provide the resources and necessary tools that allow for our law
enforcement agents in all communities to search out terrorists wherever
they may hide among us.
The continued success of the war on terrorism strongly depends upon
our law enforcement and counter-terrorism officers being able to adapt
and improve as our ever evolving enemies present new threats. Al Qaeda
has shown that they will use various tactics to kill innocent
civilians, we must be able to effectively prevent each attack
regardless of what form it is to come in. In order to do that, we must
have numerous tools to track suspects and gather detailed information
about possible attacks. Additionally, we must be able to effectively
use this information to bring would-be attackers to justice before they
have a chance to strike.
We must also remain diligent in dismantling the terrorist financial
network. To date, many of the provisions of the PATRIOT Act have
allowed our law enforcement agencies to designate 40 terrorist
organizations, freeze $136 million in assets around the world, and
charge more than 100 individuals in judicial districts throughout the
country with terrorist financing-related crimes. Taking away their
resources is an important method of decapitating and slowing the growth
of many of these terror networks.
[[Page H6246]]
To date, the PATRIOT Act has been an extremely effective weapon in
the war on terror. We cannot allow the terrorists to find any safe
havens in this nation. This will continue to be a long and hard fight
to protect and defend our homeland against this ruthless and fanatical
enemy, but with the necessary tools to root them out wherever they may
hide, I am certain we will continue to be victorious. I would again
strongly encourage my colleagues to join me in supporting the USA
PATRIOT Act and Terrorism Prevention Reauthorization Act of 2005.
Mr. LEVIN. Mr. Chairman, the fight against terrorism is very serious
business and we need to give law enforcement the tools it needs to
prevent terrorist attacks against the American people. When the
Congress approved the PATRIOT Act four years ago, we recognized that
the serious nature of the threat required giving law enforcement broad
new powers to help prevent it. But we were wise enough to also
recognize that under our Constitution, laws and traditions, such broad
power requires checks and balances as well as continuous congressional
oversight to ensure that this power is not abused.
I voted for the PATRIOT Act four years ago. I support most of the 166
provisions of the PATRIOT Act; indeed, today's debate has nothing to do
with the vast majority of these provisions, which are already the
permanent law of the land. The bill before the House today concerns
only the 16 provisions of the PATRIOT Act subject to sunset--the
provisions that have the most serious potential impact on the
fundamental liberties of innocent Americans if they are abused. These
16 provisions involve the power of the government to enter and search
people's homes without notice, to tap people's communications with
roving wiretaps, and obtain people's library and health records.
Because these provisions touch on the most basic liberties of citizens,
we included sunsets so Congress would be required to revisit them. The
sunsets balance the extraordinary powers given to law enforcement with
oversight and accountability. More than that, the sunsets give Congress
the opportunity to regularly review the PATRIOT Act and fine-tune it to
adapt to changing circumstances.
The bill before the House takes away the sunset provisions for 14 of
these sensitive provisions, and sets ineffectively long ten-year
sunsets for the other two provisions. In so doing, this bill throws
assured oversight and accountability out the window.
Let me say this. Many of us voted for the PATRIOT Act four years ago
with the assurances that there would be meaningful oversight by
Congress. For much of the past four years, the rigorous oversight we
were promised simply didn't happen. It has only been in the last few
months, as the sunset dates approached, that Congress has asked
questions, and held the Administration's feet to the fire to provide
basic information about how the PATRIOT Act is being implemented. Now
the Majority proposes to discard the sunset provisions. The experience
of the last four years shows that without sunsets, there is no
oversight and no accountability.
I had hoped that the serious shortcomings in this bill could be
corrected on the Floor today, but the Majority has blocked a number of
important amendments Democrats sought to offer. I believe that many of
these amendments would have been adopted had they been put to a vote.
It didn't have to be this way. I understand that the Senate Judiciary
Committee has unanimously approved its own version of the PATRIOT Act
today that contains many of the improvements that the House Leadership
denied us the opportunity to debate. I regret that the Leadership of
the House has not embraced a similar bipartisan process.
I will vote for the motion to recommit the bill, which would correct
the most serious shortfalls in the legislation; in particular, the lack
of sunsets of key provisions--sunsets that were contained in the
original PATRIOT Act.
I will therefore oppose passage of this legislation today in the hope
that the bipartisan Senate Judiciary Committee's version will prevail
in the Senate.
Mr. VAN HOLLEN. Mr. Chairman, I rise to explain my decision to vote
against this version of the PATRIOT Act. This has not been an easy
decision. Some of the provisions that are being reauthorized in this
bill provide law enforcement officials with important tools that may be
helpful in detecting and disrupting terrorist activities. I support
those provisions. Other provisions, however, fail to provide adequate
safeguards to ensure that the privacy rights of innocent citizens are
protected. It is very important that, in our effort to defend the
liberties that Americans cherish, we not enact measures that erode the
very freedoms we seek to protect. We can ensure that the government has
the necessary surveillance powers without sacrificing the privacy
rights of Americans. Indeed, many amendments to the PATRIOT Act were
proposed in both the Judiciary Committee and the Rules Committee to
address legitimate concerns. Unfortunately, many of these amendments
were either rejected or blocked from coming up for a vote.
In the aftermath of September 11, 2001, it is essential that we
strengthen our ability to detect, deter, and disrupt terrorist
activities. Many provisions in the PATRIOT Act accomplish this
objective in a balanced way. Other provisions, however, leave citizens
vulnerable to unchecked, unwarranted, and potentially abusive invasions
of privacy. I am hopeful that the Senate will address these
shortcomings in the House bill so that, at the end of the day, we can
enact a balanced bill that protects both our security and the rights
and liberties we seek to secure.
We can do better. I look forward to continuing to work with my
colleagues--both Democrats and Republicans--to develop a bill of which
we can all be proud and which can be a true testament to American
patriots and to the Constitution we all seek to uphold and defend.
Mr. CARDIN. Mr. Chairman, I rise in support of H.R. 3199, the USA
PATRIOT and Terrorism Prevention Reauthorization Act of 2005.
Following the terrorist attacks on September 11, 2001, Congress
undertook a review of Bush Administration proposals to strengthen our
laws relating to counterterrorism. Congress passed the Patriot Act in
October 2001--which I supported--recognizing that it needed to give law
enforcement the proper tools to effectively combat new terrorist
threats. The law took account of new changes in technology that are
used by terrorists, such as cell phones, the Internet, and encryption
technologies.
The original Act gives federal officials greater authority to track,
intercept, and share communications, both for law enforcement and
foreign intelligence gathering purposes. It vests the Secretary of the
Treasury with regulatory powers to combat corruption of U.S. financial
institutions for foreign money laundering purposes. It seeks to further
close our borders to foreign terrorists and to detain and remove those
within our borders. It creates new crimes, new penalties, and new
procedural efficiencies for use against domestic and international
terrorists. Indeed, the PATRIOT Act gives federal prosecutors many of
the same tools to use against terrorists that Congress has already
granted them to use against drug traffickers, for example.
The original Act also creates judicial safeguards for e-mail
monitoring and grand jury disclosures; recognizes innocent owner
defenses to forfeiture; and entrusts enhanced anti-money laundering
powers to those regulatory authorities whose concerns include the well
being of our financial institutions.
Congress did not grant all of the authority the President sought in
the first Patriot Act, and sunsetted much of the Act's authority in
2005. Many of the wiretapping and foreign intelligence amendments
sunset on December 31, 2005. The sunset provisions require
Congressional oversight because Congress must take an affirmative
action to keep these provisions in effect. I believe that Congress
should exercise greater oversight of the use of new authority under the
PATRIOT Act, as I have some misgivings about the Administration's use
of the new powers under the PATRIOT Act.
Over the past few years I have continued to insist on greater
oversight by Congress of the Justice Department as it executes its new
powers. I am pleased that the Committee includes sunsets for two
provisions: access to business and other records, and roving wiretaps.
I support additional sunsets for other provisions in this legislation
such as the ``sneak and peek'' provision which allows delayed
notification for search warrants--and I am hopeful that the House will
ultimately adopt the additional sunsets approved by the Senate
Judiciary Committee when this bill returns from conference committee.
I am disappointed that the House leadership did not make in order
amendments that would have: exempted library and bookstore records from
Foreign Intelligence Surveillance Act (FISA) searches; reformed the
roving wiretap authority in FISA cases to contain the same privacy
safeguards as roving wiretaps in criminal cases; established the
traditional FISA standards for search warrants; required individual
suspicion for records orders; allowed citizens to challenge secrecy
orders in records requests; and extended the sunset clauses for
numerous other provisions of the Patriot Act.
I voted in favor of a number of bipartisan amendments to limit the
Justice Department's power and increase Congressional and judicial
oversight of the executive branch, including: requiring the FBI
Director to personally approve searches of library or bookstore
records; additional reporting to courts by law enforcement when they
change surveillance locations under a ``roving wiretap''; allowing
recipients of National Security Letters to consult with an attorney and
challenge the letters in court; and increasing reporting requirements
and making it more difficult to obtain ``sneak and peak''
[[Page H6247]]
search warrants, which entail secret searches of homes and offices with
delayed notice.
We must not repeat the mistakes of the past, when the United States
sacrificed the civil rights of particular individuals or groups in the
name of security. Whether in times of war or peace, finding the proper
balance between government power and the rights of the American people
is a delicate and extremely important process. It is a task that
rightly calls into play the checks and balances that the Founders
created in our system of government. All three branches of government
have their proper roles to play in making sure the line is drawn
appropriately, as we upheld our oaths to support the Constitution.
I support H.R. 3199 but I hope as this legislation works its way
through Congress, we will include sunsets on the provisions we are
reauthorizing, so that Congress will continue to oversee the executive
branch's use of these new powers.
Mr. LARSON of Connecticut. Mr. Chairman, I rise today disappointed at
the missed opportunity for the House to strike a reasonable balance
within the PATRIOT Act that empowers law enforcement and protects civil
liberties. There is more to protecting American's security than peeking
into people's reading habits or medical records. Protecting America
means securing our ports and borders, supporting our first responders,
and ensuring that our transit systems, nuclear power plants and schools
are safe from those who seek to do us harm. Frankly, Americans are
still at risk. There are large gaps that still remain in critical areas
that leave Americans vulnerable to the threat of terrorism. For
example:
Our greatest threat remains an attack by a weapon of mass
destruction. But funding for cooperative threat reduction programs to
secure unaccounted for nuclear material in the former Soviet Union have
remained stagnant since 9/11, taking a backseat to other priorities
like expanding tax cuts and privatizing Social Security.
There are almost 2,000 fewer border inspectors and agents than were
called for in the 2001 PATRIOT Act. The hard truth is we need more. Of
the 2,000 border patrol agents called for in the Intelligence Reform
Act, the Republican majority has funded only 500 this year. This leaves
our borders dangerously unprotected.
Funding for first responder programs, our front line defense against
terrorists at home, has dropped 27 percent in the past three years,
from a high of $3.3 billion in 2003 to $2.4 billion in 2006--funds
which help our towns and cities hire, train and equip our police,
firefighters and medical responders.
While 32 million Americans use public transportation every day, we
have spent only $250 million on transit since 9/11, compared to the
$18.2 billion we've spent on aviation. This leaves our buses, trains,
subways, highways and bridges dangerously vulnerable to the kind of
attacks we saw in London.
Almost four years after 9/11, only five percent of incoming cargo
containers are inspected for hazardous materials. Ninety-five percent
of American trade comes through our 361 seaports every year, yet there
is no dedicated funding steam for port security. Despite the threat,
the President requested no money for port security in FY 2006.
Every day, Americans are asked to empty their pockets, remove their
shoes and have their baggage inspected before boarding an airplane.
However, most of the cargo loaded onto passenger and cargo airplanes
still goes uninspected.
Protecting America is not a partisan issue, it is a matter of
priorities. This version of the PATRIOT Act may be slightly improved
over the last one, but let's not take our eye off the ball. There is
still much more to be done to protect America. Either we take real
action to close our security gaps, or the terrorists will find them and
exploit them.
The debate today is not about the key issues that will really protect
America. It is not even about the whole PATRIOT Act. It is about the
reauthorization of 16 highly controversial provisions of the original
PATRIOT Act scheduled to expire at the end of the year.
This sunset was critical to earn support for such sweeping
legislation, when in the shadow of the September 11th terrorist attack,
the Administration pushed Congress to quickly pass legislation that
would provide vast new powers to law enforcement. The sunset provisions
would ensure Congress would be able to take a closer look how this
authority was implemented and at its effectiveness of balancing
security and liberty.
I was hopeful that that an open amendment process would allow the
House to address the many concerns of the Members of this House and the
American public have with the PATRIOT Act. Unfortunately, the House
Majority has chosen to prohibit an open debate and consideration on the
most sensitive and controversial issues surrounding this bill. In fact,
most of the amendments they have allowed to be considered have very
little to do with the provisions that are up for reauthorization. This
means some of the most controversial provisions of the bill would
become permanent, including Section 213, the ``sneak and peek''
provision that allows secret searches and seizures. Only two of the
most controversial provisions, such as Section 215, the ``library
provision'' that allows access to library and bookstore records, credit
card information, medical records and employment histories, would be
allowed to be reexamined, but not for another 10 years. Amendments that
could have strengthened the protection of privacy and civil liberties
that could have made this a better bill were prohibited from even being
considered or debated.
The single most alarming part of this bill is that it would remove
the protection of sunsets to most of the PATRIOT Act. Oversight, review
and debate are all the result of a healthy democracy. We should not be
afraid to improve that the PATRIOT Act every two or four years.
Revisiting the PATRIOT Act is a good thing. Congressional oversight
over one of the most fundamental challenges of our time would not
hinder our society but enhance it.
The 9/11 Commission warned, ``the terrorists have used our open
society against us. In wartime, government calls for greater powers,
and then the need for those powers recedes after the war ends. This
struggle will go on. Therefore, while protecting our homeland,
Americans should be mindful of threats to vital personal and civil
liberties. This balancing is no easy task, but we must constantly
strive to keep it right.'' This bill does not keep it right. The
American public deserves better, they deserve security and liberty. I
stand with Benjamin Franklin who said, ``he who would trade liberty for
some temporary security, deserves neither liberty nor security.''
Congress' record should match its rhetoric. Protecting America from
terrorism means inspecting cargo on passenger planes, inspecting cargo
in our ports, securing unaccounted nuclear material in the former
Soviet Union and providing our first responders with the resources they
need to be our first line of defense in the war on terror. Protecting
America is about real priorities that can and will protect the
homeland, which unfortunately are not part of the bill before us today.
Mr. HOEKSTRA. Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Sweeney). All time for general debate has
expired.
In lieu of the amendments recommended by the Committee on the
Judiciary and the Permanent Select Committee on Intelligence printed in
the bill, it shall be in order to consider as an original bill for the
purpose of amendment under the 5-minute rule an amendment in the nature
of a substitute printed in part A of House Report 109-178. That
amendment shall be considered read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 3199
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USA PATRIOT and Terrorism
Prevention Reauthorization Act of 2005''.
SEC. 2. REFERENCES TO USA PATRIOT ACT.
A reference in this Act to the USA PATRIOT ACT shall be
deemed a reference to the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.
SEC. 3. USA PATRIOT ACT SUNSET PROVISIONS.
(a) In General.--Section 224 of the USA PATRIOT ACT is
repealed.
(b) Sections 206 and 215 Sunset.--Effective December 31,
2015, the Foreign Intelligence Surveillance Act of 1978 is
amended so that sections 501, 502, and 105(c)(2) read as they
read on October 25, 2001.
SEC. 4. REPEAL OF SUNSET PROVISION RELATING TO INDIVIDUAL
TERRORISTS AS AGENTS OF FOREIGN POWERS.
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3742)
is amended by--
(1) striking subsection (b); and
(2) striking ``(a)'' and all that follows through
``Section'' and inserting ``Section''.
SEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SECTION 2332B
AND THE MATERIAL SUPPORT SECTIONS OF TITLE 18,
UNITED STATES CODE.
Section 6603 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3762)
is amended by striking subsection (g).
SEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTERCEPTION
INFORMATION UNDER SECTION 203(B) OF THE USA
PATRIOT ACT.
Section 2517(6) of title 18, United States Code, is amended
by adding at the end the following: ``Within a reasonable
time after a disclosure of the contents of a communication
under this subsection, an attorney for the Government shall
file, under seal, a notice with a judge whose order
authorized or approved the interception of that
communication, stating the fact that such contents
[[Page H6248]]
were disclosed and the departments, agencies, or entities to
which the disclosure was made.''.
SEC. 7. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES
PERSONS UNDER SECTION 207 OF THE USA PATRIOT
ACT.
(a) Electronic Surveillance.--Section 105(e) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(e)) is
amended--
(1) in paragraph (1)(B), by striking ``, as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''; and
(2) in subsection (2)(B), by striking ``as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''.
(b) Physical Search.--Section 304(d) of such Act (50 U.S.C.
1824(d)) is amended--
(1) in paragraph (1)(B), by striking ``as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''; and
(2) in paragraph (2), by striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''.
(c) Pen Registers, Trap and Trace Devices.--Section 402(e)
of such Act (50 U.S.C. 1842(e)) is amended--
(1) by striking ``(e) An'' and inserting ``(e)(1) Except as
provided in paragraph (2), an''; and
(2) by adding at the end the following new paragraph:
``(2) In the case of an application under subsection (c)
where the applicant has certified that the information likely
to be obtained is foreign intelligence information not
concerning a United States person, an order, or an extension
of an order, under this section may be for a period not to
exceed one year.''.
SEC. 8. ACCESS TO CERTAIN BUSINESS RECORDS UNDER SECTION 215
OF THE USA PATRIOT ACT.
(a) Establishment of Relevance Standard.--Subsection (b)(2)
of section 501 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1861) is amended by striking ``to obtain''
and all that follows and inserting ``and that the information
likely to be obtained from the tangible things is reasonably
expected to be (A) foreign intelligence information not
concerning a United States person, or (B) relevant to an
ongoing investigation to protect against international
terrorism or clandestine intelligence activities.''.
(b) Clarification of Judicial Discretion.--Subsection
(c)(1) of such section is amended to read as follows:
``(c)(1) Upon an application made pursuant to this section,
if the judge finds that the application meets the
requirements of subsections (a) and (b), the judge shall
enter an ex parte order as requested, or as modified,
approving the release of records.''.
(c) Authority to Disclose to Attorney.--Subsection (d) of
such section is amended to read as follows:
``(d)(1) No person shall disclose to any person (other than
a qualified person) that the United States has sought or
obtained tangible things under this section.
``(2) An order under this section shall notify the person
to whom the order is directed of the nondisclosure
requirement under paragraph (1).
``(3) Any person to whom an order is directed under this
section who discloses that the United States has sought to
obtain tangible things under this section to a qualified
person with respect to the order shall inform such qualified
person of the nondisclosure requirement under paragraph (1)
and that such qualified person is also subject to such
nondisclosure requirement.
``(4) A qualified person shall be subject to any
nondisclosure requirement applicable to a person to whom an
order is directed under this section in the same manner as
such person.
``(5) In this subsection, the term `qualified person'
means--
``(A) any person necessary to produce the tangible things
pursuant to an order under this section; or
``(B) an attorney to obtain legal advice with respect to an
order under this section.''.
(d) Judicial Review.--
(1) Petition review panel.--Section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended by adding at the end the following new subsection:
``(e)(1) Three judges designated under subsection (a) who
reside within 20 miles of the District of Columbia, or if all
of such judges are unavailable, other judges of the court
established under subsection (a) as may be designated by the
Presiding Judge of such court (who is designated by the Chief
Justice of the United States from among the judges of the
court), shall comprise a petition review panel which shall
have jurisdiction to review petitions filed pursuant to
section 501(f)(1).
``(2) Not later than 60 days after the date of the
enactment of the USA PATRIOT and Terrorism Prevention
Reauthorization Act of 2005, the court established under
subsection (a) shall develop and issue procedures for the
review of petitions filed pursuant to section 501(f)(1) by
the panel established under paragraph (1). Such procedures
shall provide that review of a petition shall be conducted ex
parte and in camera and shall also provide for the
designation of an Acting Presiding Judge.''.
(2) Proceedings.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is further amended
by adding at the end the following new subsection:
``(f)(1) A person receiving an order to produce any
tangible thing under this section may challenge the legality
of that order by filing a petition in the panel established
by section 103(e)(1). The Presiding Judge shall conduct an
initial review of the petition. If the Presiding Judge
determines that the petition is frivolous, the Presiding
Judge shall immediately deny the petition and promptly
provide a written statement of the reasons for the
determination for the record. If the Presiding Judge
determines that the petition is not frivolous, the Presiding
Judge shall immediately assign the petition to one of the
judges serving on such panel. The assigned judge shall
promptly consider the petition in accordance with procedures
developed and issued pursuant to section 103(e)(2). The judge
considering the petition may modify or set aside the order
only if the judge finds that the order does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the order, the judge shall
immediately affirm the order and order the recipient to
comply therewith. A petition for review of a decision to
affirm, modify, or set aside an order by the United States or
any person receiving such order shall be to the court of
review established under section 103(b), which shall have
jurisdiction to consider such petitions. The court of review
shall immediately provide for the record a written statement
of the reasons for its decision and, on petition of the
United States or any person receiving such order for writ of
certiorari, the record shall be transmitted under seal to the
Supreme Court, which shall have jurisdiction to review such
decision.
``(2) Judicial proceedings under this subsection shall be
concluded as expeditiously as possible. The judge considering
a petition filed under this subsection shall provide for the
record a written statement of the reasons for the decision.
The record of proceedings, including petitions filed, orders
granted, and statements of reasons for decision, shall be
maintained under security measures established by the Chief
Justice of the United States in consultation with the
Attorney General and the Director of National Intelligence.
``(3) All petitions under this subsection shall be filed
under seal, and the court, upon the government's request,
shall review any government submission, which may include
classified information, as well as the government's
application and related materials, ex parte and in camera.''.
SEC. 9. REPORT ON EMERGENCY DISCLOSURES UNDER SECTION 212 OF
THE USA PATRIOT ACT.
Section 2702 of title 18, United States Code, is amended by
adding at the end the following:
``(d) Report.--On an annual basis, the Attorney General
shall submit to the Committees on the Judiciary of the House
and the Senate a report containing--
``(1) the number of accounts from which the Department of
Justice has received voluntary disclosures under subsection
(b)(8); and
``(2) a summary of the basis for disclosure in those
instances where--
``(A) voluntary disclosure under subsection (b)(8) was made
to the Department of Justice; and
``(B) the investigation pertaining to those disclosures was
closed without the filing of criminal charges.''.
SEC. 10. SPECIFICITY AND NOTIFICATION FOR ROVING SURVEILLANCE
AUTHORITY UNDER SECTION 206 OF THE USA PATRIOT
ACT.
(a) Inclusion of Specific Facts in Application.--Section
105(c)(2)(B) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805(c)(2)(B)) is amended by striking ``where
the Court finds'' and inserting ``where the Court finds,
based upon specific facts provided in the application,''.
(b) Notification of Surveillance of New Facility or
Place.--Section 105(c)(2) of such Act is amended--
(1) in subparagraph (C), by striking ``and'' at the end;
(2) in subparagraph (D), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(E) that, in the case of electronic surveillance directed
at a facility or place that is not known at the time the
order is issued, the applicant shall notify a judge having
jurisdiction under section 103 within a reasonable period of
time, as determined by the court, after electronic
surveillance begins to be directed at a new facility or
place, and such notice shall contain a statement of the facts
and circumstances relied upon by the applicant to justify the
belief that the facility or place at which the electronic
surveillance is or was directed is being used, or is about to
be used, by the target of electronic surveillance.''.
SEC. 11. PROHIBITION ON PLANNING TERRORIST ATTACKS ON MASS
TRANSPORTATION.
Section 1993(a) of title 18, United States Code, is
amended--
(1) by striking ``or'' at the of paragraph (7);
(2) by redesignating paragraph (8) as paragraph (9); and
(3) by inserting after paragraph (7) the following:
``(8) surveils, photographs, videotapes, diagrams, or
otherwise collects information with the intent to plan or
assist in planning any of the acts described in the
paragraphs (1) through (7); or''.
SEC. 12. ENHANCED REVIEW OF DETENTIONS.
Section 1001 of the USA PATRIOT ACT is amended by--
[[Page H6249]]
(1) inserting ``(A)'' after ``(1)''; and
(2) inserting after ``Department of Justice'' the
following: ``, and (B) review detentions of persons under
section 3144 of title 18, United States Code, including their
length, conditions of access to counsel, frequency of access
to counsel, offense at issue, and frequency of appearance
before a grand jury''.
SEC. 13. FORFEITURE.
Section 981(a)(1)(B)(i) of title 18, United States Code, is
amended by inserting ``trafficking in nuclear, chemical,
biological, or radiological weapons technology or material,
or'' after ``involves''.
SEC. 14. ADDING OFFENSES TO THE DEFINITION OF FEDERAL CRIME
OF TERRORISM.
Section 2332b)(g)(5)(B)(i) of title 18, United States Code,
is amended--
(1) by inserting ``, 2339D (relating to military-type
training from a foreign terrorist organization)'' before ``,
or 2340A'' ; and
(2) by inserting ``832 (relating to nuclear and weapons of
mass destruction threats),'' after ``831 (relating to nuclear
materials),''.
SEC. 15. AMENDMENTS TO SECTION 2516(1) OF TITLE 18, UNITED
STATES CODE.
(a) Paragraph (c) Amendment.--Section 2516(1)(c) of title
18, United States Code, is amended--
(1) by inserting ``section 37 (relating to violence at
international airports), section 175b (relating to biological
agents or toxins)'' after ``the following sections of this
title:'';
(2) by inserting ``section 832 (relating to nuclear and
weapons of mass destruction threats), section 842 (relating
to explosive materials), section 930 (relating to possession
of weapons in Federal facilities),'' after ``section 751
(relating to escape),'';
(3) by inserting ``section 1114 (relating to officers and
employees of the United States), section 1116 (relating to
protection of foreign officials), sections 1361-1363
(relating to damage to government buildings and
communications), section 1366 (relating to destruction of an
energy facility), '' after ``section 1014 (relating to loans
and credit applications generally; renewals and
discounts),'';
(4) by inserting ``section 1993 (relating to terrorist
attacks against mass transportation), sections 2155 and 2156
(relating to national-defense utilities), sections 2280 and
2281 (relating to violence against maritime navigation),''
after ``section 1344 (relating to bank fraud),''; and
(5) by inserting ``section 2340A (relating to torture),''
after ``section 2321 (relating to trafficking in certain
motor vehicles or motor vehicle parts),''.
(b) Paragraph (p) Amendment.--Section 2516(1)(p) is amended
by inserting ``, section 1028A (relating to aggravated
identity theft)'' after ``other documents''.
(c) Paragraph (q) Amendment.--Section 2516(1)(q) of title
18 United States Code is amended--
(1) by inserting ``2339'' after ``2232h''; and
(2) by inserting ``2339D'' after ``2339C''.
SEC. 16. DEFINITION OF PERIOD OF REASONABLE DELAY UNDER
SECTION 213 OF THE USA PATRIOT ACT.
Section 3103a(b)(3) of title 18, United States Code, is
amended--
(1) by striking ``of its'' and inserting ``, which shall
not be more than 180 days, after its''; and
(2) by inserting ``for additional periods of not more than
90 days each'' after ``may be extended''.
The Acting CHAIRMAN. No amendment to the amendment in the nature of a
substitute is in order except those printed in part B of the report.
Each amendment may be offered only in the order printed in the report,
by a Member designated in the report, shall be considered read, shall
be debatable for the time specified in the report, equally divided and
controlled by the proponent and an opponent, shall not be subject to
amendment, and shall not be subject to a demand for division of the
question.
It is now in order to consider amendment No. 1 printed in House
Report 109-178.
It is now in order to consider amendment No. 2 printed in House
Report 109-178.
Amendment No. 2 Offered by Mr. Flake
Mr. FLAKE. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 2 offered by Mr. Flake:
At the end of section 8 add the following new subsection:
(e) FBI Director Required to Apply for Order of Production
of Records From Library or Bookstore.--Section 501(a) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1861(a)) is amended--
(1) in paragraph (1), by striking ``The Director'' and
inserting ``Subject to paragraph (3), the Director''; and
(2) by adding at the end the following new paragraph:
``(3) In the case of an application for an order requiring
the production of tangible things described in paragraph (1)
from a library or bookstore, the Director of the Federal
Bureau of Investigation shall not delegate the authority to
make such application to a designee.''.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the gentleman
from Arizona (Mr. Flake) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Chairman, I yield myself 2 minutes.
Mr. Chairman, I offer this amendment with my colleague the gentleman
from California (Mr. Schiff), a Democrat.
Mr. Chairman, this amendment simply states that the Director of the
FBI must personally approve any library or bookstore request for
records by the FBI under section 215 of the PATRIOT Act. This amendment
provides a higher standard for the use of section 215 by the FBI.
At a minimum, what it will prevent I think is some kind of fishing
expedition that might be undertaken by an overzealous agent or official
at the Bureau. Having the Director of the FBI sign off on the request,
it also sends a signal to the library and bookstore owners that a
request for information from the FBI is well thought out and comes from
the highest level.
This amendment compliments other amendments I have offered in the
Committee on the Judiciary, two of which were accepted by the chairman
and the committee. Those were: With regard to section 215, we clarified
that if there is an inquiry, you not only as a respondent have access
to an attorney to respond to the inquiry, but also to challenge it. The
other had to do with another section in committee. We will stick with
this one.
With these two amendments on 215 combined, I think we have provided
strong protections for the contested section of the PATRIOT Act. There
has been a lot of attention, as has been noted here, across the country
at this provision, which has been termed the library provision. It
obviously has a lot more to do than with libraries. Libraries are not
even mentioned in it. But we see the need to make protections to be
sure that no overzealous agent at the FBI or anybody goes and searches
somebody's library records or bookstore purchases. So that is what this
amendment is prepared to do.
Mr. Chairman, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I ask unanimous consent to
control the time in opposition, although I am not in opposition.
The Acting CHAIRMAN. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. SCOTT. Mr. Chairman, I yield 2 minutes to the gentleman from
Texas (Mr. Doggett).
Mr. DOGGETT. Mr. Chairman, I rise in support of the amendment, but I
do not believe it is a good enough cure to make this sick legislation
well.
I believe that most of what America needs to know about the PATRIOT
Act is reflected in its deceptive title. Its authors deliberately
designed a name to question the patriotism of anyone who questions
them. Are you for patriotism, or are you against patriotism? Are you
with America, or are you against America?
The American patriots who declared our independence in 1776 were true
patriots who risked their lives in order to secure our liberties.
True patriots defend liberty.
Real patriots do not surrender our freedom, unless there is
absolutely no other way to protect our lives.
Patriots demand accountability, restraint, and judicial review of
encroachments on the freedoms that make our country unique.
While some portions of this proposed renewal of the PATRIOT Act
strike the right balance, other provisions simply strike out. We must
balance the demands of keeping our Nation secure with the freedoms that
we cherish. We must not sacrifice our democracy in a misguided attempt
to save it.
Wrapping this collection of misguided policies under the rubric ``the
PATRIOT Act'' is a true mark of how really weak the underlying
arguments are for this measure.
Surely we can secure our families' safety without becoming more like
a police state, which would deny the freedoms that define us as
Americans.
The dangerous road to government oppression begins one step at a
time. It does not all happen at once. This bill, I believe, is a step
in the wrong direction, a step in the direction of suppressing our
freedoms. I believe that it
[[Page H6250]]
is very important that we patriotically preserve our liberties and
freedoms as Americans by rejecting the measure in its current form.
Mr. SCHIFF. Mr. Chairman, although not in opposition, I ask unanimous
consent to control the balance of the time in opposition to the
amendment.
The Acting CHAIRMAN. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. SCHIFF. Mr. Chairman, I yield myself such time as I may consume.
Mr. FLAKE. Mr. Chairman, I yield 3 minutes to the gentleman from
California (Mr. Schiff), the cosponsor of the amendment.
(Mr. SCHIFF asked and was given permission to revise and extend his
remarks.)
Mr. SCHIFF. Mr. Chairman, I rise today to urge my colleagues to
support the Flake-Schiff amendment, which would make an important
change to section 215 if it is ever used in the library or bookstore
context. This amendment is substantially similar to one I offered in
the Committee on the Judiciary with the gentlewoman from California
(Ms. Waters), but one I agreed to withdraw in order to work with the
gentleman from Arizona (Mr. Flake) in a bipartisan fashion on a
proposal for consideration on the House floor.
I am sure that every Member of Congress has heard from their
constituents regarding this very provision of the PATRIOT Act. Even if
possibly based on misplaced fears, some of the public are now
apprehensive about going to their local library or bookstore.
Our amendment would not prevent law enforcement from investigating
alleged terrorist activity wherever it may occur. It creates no safe
haven for terrorists. Instead, our amendment would aim to restore some
measure of public confidence that this provision will not be abused.
The Flake-Schiff amendment says that vis-a-vis the records that pose
the greatest concern for all of our constituents, library records or
bookstore records, the existing authority which allows lower level FBI
agents to seek those records should be significantly amended.
If our amendment is adopted, only the FBI Director himself or herself
can approve such an order for an investigation to protect against
international terrorism or clandestine intelligence activities.
As of the latest public disclosure, the Justice Department has
reported that section 215 has never been used in a library. The fact,
however, that this provision may never have been used in a library to
date does not alter the fact that it affects the behavior of all of our
constituents who are concerned that their records may one day be the
subject of a search.
Given the sensitivity of this section, I believe it is worthwhile and
necessary to make changes to existing law and that this added
protection is warranted.
During the Committee on the Judiciary markup last week, I offered an
additional amendment to section 215 that would have lifted the
prohibition on disclosure when a United States citizen was impacted and
when the investigation had concluded if there was no good cause to
continue to prohibit the disclosure. Unfortunately, this amendment was
rejected on party lines.
The Flake-Schiff amendment will still make another important and
needed change. I believe it makes very good sense for the FBI Director
and the Director alone to make the decision, and not to delegate it
away. The bipartisan PATRIOT Act proposal in the Senate makes a similar
change, restricting this authority to the FBI Director or Deputy
Director. I think our amendment provides an even stronger safeguard and
strikes a balance that will restore a measure of public confidence in
this area.
Before closing, Mr. Chairman, I want to take a moment to discuss the
Sanders amendment and other efforts to make important changes to
section 215. While I am appreciative that the Committee on Rules made
the Flake-Schiff amendment in order, I am disappointed that the Sanders
amendment was not also made in order. I believe that this House and the
American people are better served if all proposals are duly and fairly
considered on the House floor.
As you know, last month the House decisively adopted the Sanders
amendment during consideration of the Science, State, Justice and
Commerce appropriations bill. I supported that amendment, which
prohibited the use of funds for a section 215 search of a library
record patron list, book sale record or book customer list.
The Sanders amendment, however, did not amend the underlying PATRIOT
law, which I believe we must do as a first step. We must permanently
limit the statutory authorization to use section 215 in libraries and
bookstores. The Sanders amendment also made no changes to the ability
to search library computer and Internet records.
I expect and encourage the gentleman from Vermont (Mr. Sanders) to
bring his amendment before the House floor each year to further limit
the use of section 215 with respect to specific lists and records in
libraries and bookstores. But, for now, since the amendment only
applies for 1 year and only applies to specific items in the library, I
think it is important and necessary for the House to pass this broader
and permanent change to the PATRIOT Act.
Mr. Chairman, I reserve the balance of my time.
Mr. FLAKE. Mr. Chairman, I yield 2 minutes to the gentleman from
Indiana (Mr. Pence), a valued member of the Committee on the Judiciary
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Mr. Chairman, I thank the gentleman from Arizona for
yielding me time. I thank the gentleman from Arizona (Mr. Flake) and
the gentleman from California (Mr. Schiff) for their tireless advocacy
of the liberties of the American people, and I rise in strong support
of the bipartisan Flake-Schiff amendment.
President Harry Truman, I am told, had a plaque on his desk that
simply read ``The buck stops here.'' It seems to me that the Flake-
Schiff amendment is all about saying that when it comes to that sacred
relationship that the American people feel between their local library
and their local bookstore, that the FBI Director himself or herself
must be directly involved if that relationship is to be intruded upon
in the name of an investigation into the war on terror.
The Flake-Schiff amendment requires the Director of the FBI to
personally approve any library or bookstore request for records under
section 215 of the PATRIOT Act. Currently the law permits a designee of
the Director whose rank cannot be lower than an Assistant Special Agent
in Charge to approve section 215 orders, and that will change.
Also under this amendment, the Director of the FBI cannot delegate
the duty to personally approve a section 215 request for library and
bookstore records. This amendment, as the gentleman from Arizona (Mr.
Flake) said earlier, will prevent section 215 from being abused or used
in a fishing expedition intruding upon the privacy of ordinary
Americans in the name of the war on terror.
Again I quote President Harry Truman's famous plaque or missive,
``The buck stops here.'' The Flake-Schiff amendment is simply about
saying if the war on terror demands it, when it comes to intruding upon
that sacred relationship between the American people and a bookstore or
a library, we have to have those who are of the highest accountability
in our political system to answer to that.
I strongly support the Flake-Schiff amendment and the commonsense
underpinning that brings it to the floor today, and urge its passage.
Mr. SCHIFF. Mr. Chairman, I yield 1\1/2\ minutes to the gentlewoman
from California (Ms. Zoe Lofgren).
Ms. ZOE LOFGREN of California. Mr. Chairman, I will certainly vote
for this amendment, but I fear that it does not fully solve the problem
that has been identified by many. Before the PATRIOT Act, the
government could obtain only limited records from hotels, storage
facilities and car rental companies, and only if those documents
pertained to an agent of a foreign power.
{time} 1500
Now, the government can seek any records from anyone as long as it is
relevant to an investigation. The FISA
[[Page H6251]]
court does not really have any discretion to deny these requests and,
once they are granted, they are subject to a gag order.
Now, the Justice Department has told us that they have never once
used section 215 relative to libraries, and I have no reason to
disbelieve them; but the American Library Association reports that they
have received 200 formal or informal requests for materials, presumably
under some other section of the law, perhaps grand jury subpoenas, I do
not know.
The fact is that Americans are aware of this issue, and I believe
this is having a chilling effect on first amendment rights in terms of
reading and speaking.
I believe it is important that government have the opportunity to
obtain records when it is necessary to fight terrorism. I do believe,
however, that the relevance standard is too low.
I also believe that when the House that previously approved a carve-
out for identifiable information from libraries it spoke about the
chilling impact. I believe we have a better way to get these records
and also to untrouble readers.
So while I will support the amendment, it falls short of what is
necessary.
Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from
California (Mr. Daniel E. Lungren), another member of the Committee on
the Judiciary.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I thank the
gentleman for yielding me this time, and I rise in support of the
Flake-Schiff amendment.
This is another effort in our continuation to support section 215 in
all of its aspects, with the protections that I think are reasonable
that allow us to take into consideration some of the concerns that
people have expressed, even though there have been no examples, I
repeat, no examples of abuses under this act.
The Justice Department has told us they have not used this section in
the area of libraries. Therefore, I hope they would not object to the
gentleman's amendment, because this is going to be used very, very
seldom, based on past history. Yet, it is relevant, and we already
discussed the ways in which it may be relevant to terrorism cases.
So I would hope that we would have strong support for this amendment,
recognizing that this, along with the other changes that we have added
to section 215, will allow us to have this still be utilized and
utilized in a way that is not undone, as I thought the amendment that
we had on the floor just a few weeks ago would have done so.
This is a commonsense amendment. I hope we will get unanimous support
for it.
Mr. SCHIFF. Mr. Chairman, it is my pleasure to yield 1 minute to the
gentlewoman from California (Ms. Harman).
Ms. HARMAN. Mr. Chairman, I rise in support of this amendment on two
grounds.
First, I think it moves us in the right direction. I have said
several times on this floor today about the PATRIOT Act that we should
mend it, not end it. This does tighten section 215, which has probably
been, more than any other section in the PATRIOT Act, the subject of
intense worry for outside groups and especially those who use
libraries.
But, second, I support it because of the process involved. The
gentleman from Arizona (Mr. Flake) and the gentleman from California
(Mr. Schiff) have worked on a bipartisan basis to craft something they
could both support and to persuade the leadership of the Committee on
the Judiciary and the Committee on Rules to embrace it. This is what we
should see more of, and I wish we were seeing more of it in connection
with this bill.
Finally, the gentlewoman from California (Ms. Zoe Lofgren) does make
important points. There is an even better way to amend section 215, and
that way has just been embraced unanimously, obviously on a bipartisan
basis, by the Senate Committee on the Judiciary, and that is to connect
section 215 orders to specific facts which show the target is connected
to an agent of a foreign power. That would be best; and, hopefully, we
will get there before this bill becomes law.
Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from
Wisconsin (Mr. Sensenbrenner), the chairman of the Committee on the
Judiciary.
Mr. SENSENBRENNER. Mr. Chairman, I believe this amendment is a good
one because it centralizes responsibility in the hands of the Director
of the FBI in signing off on 215 applications for bookstore and library
records.
But in the context of the overall debate, what I think is missing
from this debate is not whether there is a potential for abuse by the
Justice Department, but whether there is an actual record of abuse. And
there has been no record of abuse by the Justice Department with
bookstores and libraries. They have publicly responded repeatedly that
they have not used the 215 order to look at the records of people
checking out books or buying books at either bookstores or libraries.
Now, what this bill does is it makes an improvement to the law where
there is a specific method of contesting a 215 order by the recipient.
But to say that all of these records should be exempt from law
enforcement scrutiny is to turn our bookstores and libraries into a
sanctuary. We cannot allow that to happen.
Mr. SCHIFF. Mr. Chairman, I yield 30 seconds to the distinguished
ranking member of the Subcommittee on Crime, the gentleman from
Virginia (Mr. Scott).
Mr. SCOTT of Virginia. Mr. Chairman, there are a lot of problems with
section 215. This amendment does not take care of many of them; but by
requiring the FBI Director to personally approve the warrant, that will
significantly reduce the chance that there will be abuses.
So far as the ability to contest these, it is very unlikely that
someone receiving one of these warrants will go through the cost of
actually contesting it for someone else's rights. There are no
attorneys' fees allowed in these proceedings, and it is just more
likely that they will just give up somebody's information.
This requirement will reduce the chances that there will be abuses;
and although it does not solve all the problems, it will reduce the
abuses, and, therefore, I will be voting for it.
Mr. FLAKE. Mr. Chairman, I yield myself 1 minute. I just wanted to
say that the gentleman from Indiana (Mr. Pence) brought up the point
that the buck stops here, and that is what we are really trying to do
with the FBI Director, to ensure that that person is in charge and
there is less likely to be a fishing expedition by a lower-ranking
official. When you combine that with what we already have in law, which
is a requirement that the FBI Director report to Congress every 6
months about the use of this statute, you really have a strong
provision and strong protections.
Think of it: you have the FBI Director himself, or herself, saying, I
want to use this authority for this specific purpose, and then having
to report that every 6 months to Congress. I think we really have
curtailed the possibility for abuse.
Mr. Chairman, I reserve the balance of my time.
Mr. SCHIFF. Mr. Chairman, I want to return the courtesy extended by
my friend, and I am happy to yield 3 minutes to the gentleman from
Arizona (Mr. Flake) to be subsequently yielded as he chooses.
The Acting CHAIRMAN (Mr. Hastings of Washington). Without objection,
the gentleman from Arizona (Mr. Flake) has an additional 3 minutes.
There was no objection.
Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from
California (Mr. Issa), another member of the Committee on the
Judiciary.
Mr. ISSA. Mr. Chairman, I thank the gentleman from Arizona for
yielding me this time, and I thank the gentleman from California (Mr.
Schiff).
I have the distinction of being one of the few members on the
Committee on the Judiciary who is not an attorney, and I got a little
applause on that, I think. But I came to Congress from the business of
automobile security. The one thing I know about what we are dealing
with in terrorism is that if you leave an open window on an automobile,
no amount of security will protect you. If you leave the automobile or
your home unlocked, no security system will protect you.
[[Page H6252]]
There is absolutely no doubt that we must protect America. To do so,
we have to be able to go anywhere and never take anything completely
off the table.
I believe that this amendment allows us to guarantee that there are
no safe havens for terrorists while, at the same time, we will protect
the privacy and the fair expectation that there will not be
unreasonable rifling through the records at libraries or, for that
matter, I hope, anywhere else under this act.
Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume.
Let me just conclude by thanking the chairman of the Committee on the
Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), for
running a fair and thorough process.
Much has been said about these things being rushed through. I can
tell my colleagues that over the past 12 months or so, we have had 12
hearings on this subject, 35 witnesses. We have gone through this very
thoroughly. On each of these sections that we are dealing with, we
heard excellent testimony from the administration, from other
witnesses, from experts in the field; and that is why these amendments
have been crafted. We have sought to protect the civil liberties of
Americans every bit as much as we can here, while offering effective
tools for the war on terrorism, giving the administration the tools
that they need to fight this war.
I am persuaded that we have done well with this section, with section
215, that we have put the protections that we need in place; and I
would urge my colleagues to support this amendment.
Mr. Chairman, I yield back the balance of my time.
Mr. SCHIFF. Mr. Chairman, I am delighted to yield 15 seconds to the
gentleman from Massachusetts (Mr. Delahunt).
Mr. DELAHUNT. Mr. Chairman, I just want to make the simple point that
the amendment that was offered that was not made in order by myself,
the gentlewoman from California (Ms. Harman), and the gentleman from
California (Mr. Berman) would not have allowed, under any
circumstances, a safe haven anywhere for terrorists. It was a different
approach. The standards were higher. I think that is an important point
to make as a matter of record.
Mr. SCHIFF. Mr. Chairman, I yield myself such time as I may consume.
I want to conclude by thanking my colleague, the gentleman from
Arizona (Mr. Flake) for his work on this issue.
The fact that the library provision has not been used as of the last
public disclosure does not affect the fact that many Americans are
concerned about their expectation of privacy when they go to the
library, when they check out books on family matters, on health
matters, on other matters. They do not want to fear that the government
may be scrutinizing what they are reading. And because this has an
impact on the behavior of Americans, on the freedom to use libraries,
it is an important issue, merely that fear.
This amendment, I think, takes a small, but important, step to
provide at least the confidence to the people of this country that no
less than the Director of the FBI himself or herself can authorize the
use of this provision for library and bookseller records. I think it is
an important step forward. I hope we make further progress.
Mr. Chairman, I urge support for the amendment.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Arizona (Mr. Flake).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. FLAKE. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Arizona (Mr.
Flake) will be postponed.
It is now in order to consider amendment No. 3 printed in House
Report 109-178.
Amendment No. 3 Offered by Mr. Issa
Mr. ISSA. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 3 offered by Mr. Issa:
Page 10, line 23, strike ``within a reasonable period of
time, as determined by the court,'' and insert ``at the
earliest reasonable time as determined by the court, but in
no case later than 15 days,''.
Page 11, line 6, after ``surveillance'' insert the
following: ``and shall specify the total number of electronic
surveillances that have been or are being conducted under the
authority of the order''.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the gentleman
from California (Mr. Issa) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from California (Mr. Issa).
Mr. ISSA. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, the threat we face as Americans today is all too real.
The recent bombings in London could have happened on American soil, and
it is only through the vigilance of our many law enforcement entities
that we can combat this occurrence.
The PATRIOT Act, as it was originally adopted, contains many needed
tools to fight those who would harm us here in America. One of those
tools was the expansion of roving wiretap authority. This vital tool
allowed us to reach out and touch those who had discovered that using a
new cell phone every day would have gotten around existing wiretap
laws. It did not take the terrorists long to realize that, and it would
not take them long if that ceased to exist for them to begin using that
technique prior to the PATRIOT Act.
We made America safer when we expanded these surveillance
authorities, because now law enforcement can continue to monitor a
terrorist's activity without undue interruption. But this new authority
must be balanced with our fundamental civil liberties.
It is not that law enforcement has ever misused the roving wiretap
provision. I repeat: law enforcement has not been, through our
oversight, seen to have abused the roving wiretap provision. However,
this is such a serious, serious potential that we must take all
measures necessary to ensure that it will not be in the future.
For that reason, I seek to amend H.R. 3199 to add a level of judicial
oversight not in the current bill. The current bill gives the issuing
court blanket discretion on when law enforcement must report back on a
roving wiretap. My amendment requires law enforcement to report back to
the court within 15 days of using the roving aspect of the warrant. My
amendment also requires law enforcement to report on the total number
of electronic surveillances that have been conducted.
These are simple steps that will help guard against possible abuses
in the future, while doing nothing to hamper the value of the roving
wiretap.
Mr. Chairman, I thoroughly appreciate the opportunity to offer this
amendment; but I also want to comment that we have, as a committee,
worked like never before on a bipartisan basis to dramatically improve
a law when it came to civil liberties that already had good teeth when
it came to the security of our people.
Mr. Chairman, I reserve the balance of my time.
{time} 1515
Mr. SCOTT of Virginia. Mr. Chairman, I ask unanimous consent to claim
the time in opposition, although I will not oppose the amendment.
The Acting CHAIRMAN (Mr. Hastings of Washington). Is there objection
to the request of the gentleman from Virginia?
There was no objection.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself 2\1/2\ minutes.
Mr. Chairman, this involves a roving wiretap, and I think you have to
put these in perspective. You can get one of these roving wiretaps
under the Foreign Intelligence Surveillance Act without any probable
cause that a crime has been committed. You are just getting foreign
intelligence. It does not have to be a crime. It does not have to be
terrorism. It could be negotiations on a trade deal, anything that will
help foreign intelligence, you can get one of these roving wiretaps. So
you are starting off without probable cause of a crime.
And also, you can start off without it being the primary purpose of
the wiretap, which suggests if it is not the primary purpose, what is
the primary purpose? So there is a lot of flexibility and potential for
abuse in these things.
[[Page H6253]]
There are also some gaps. You can get one of these roving wiretaps
against a person, or in some cases, if you know which phone people are
using, you can get a John Doe warrant. And there are actually gaps in
it where you are not sure which phone, you are not sure which person,
you kind of get authority to just kind of wiretap in the area. And so
this kind of reporting I think is extremely important.
We have, for example, asked several people, if you get a roving
wiretap and foreign intelligence was not the primary purpose, what was
the primary purpose? We have had high officials suggest, well, running
a criminal investigation would be the primary purpose, which means you
are running a criminal investigation without probable cause of a crime
being committed. And you get these roving wiretaps. You put a roving
wiretap.
I have had amendments that have been defeated in committee which
would require what is called ascertainment. When you put the bug there
you have got to ascertain that the target is actually there doing the
talking, not somebody else using the same phone. Those amendments have
been defeated.
And so we need some oversight. And these reports will go a long way
in making sure that you are not abusing, you are not listening in on
the wrong people, you are not putting these bugs where they do not need
to be. You started off with no probable cause. You are not abusing the
roving aspect, putting wiretaps everywhere where they do not need to
be. I think this kind of review can go a long way in reducing the
potential of abuse, using the FISA wiretaps for criminal investigations
without probable cause, listening in to the wrong people and a lot of
other problems that can occur with the roving wiretaps.
And I thank the gentleman from California (Mr. Issa). Although it
does not solve all of the problems, it solves a lot of them and I thank
the gentleman for offering the amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. ISSA. Mr. Chairman, it is with great pleasure that I yield 2
minutes to the gentleman from Wisconsin (Mr. Sensenbrenner), the
chairman of the entire Judiciary Committee.
Mr. SENSENBRENNER. I thank the gentleman for yielding me this time.
Mr. Chairman, I rise in support of his amendment. And let me say
first that the amendment that was made by the PATRIOT Act to allow a
Federal judge, and only a Federal judge, to authorize a roving wiretap
simply brought the law up to where the technology has gone because
before the PATRIOT Act was passed you could not get an effective
wiretap order on a cell phone. So the terrorists and the drug smugglers
and the racketeers simply conducted their business on cell phones
because you could not determine whether or not the cell phone was
actually being used within the district in which the Federal court that
issued the roving wiretap order sat.
So by passing the PATRIOT Act we were able to get the Justice
Department the authority to ask a Federal judge to give a wiretap order
against the cell phone or any communications device that might be used
by the target. And that gets around the disposable cell phone issue.
The Issa amendment merely states that the judge has to be notified at
the earliest reasonable time, but no later than 15 days after a roving
wiretap order directs surveillance at a location not known at the time
when the wiretap order was issued. And this increases judicial
supervision and accountability and protects the civil liberties of the
American people.
Now, earlier today both the minority leader and her deputy, the
minority whip, were talking about the fact that there has been no
oversight done by the Judiciary Committee over the PATRIOT Act. That,
frankly, insults what both Democrats and Republicans have done on
oversight of the PATRIOT Act on a bipartisan basis. Right here is the
result of the oversight that the Judiciary Committee has done in the
last 3\1/2\ years on this law. This is a stack of paper that is almost
2 feet high. I doubt that any other committee of Congress has done as
much oversight on a single law as my committee has done on the PATRIOT
Act.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, just to acknowledge that as the chairman has indicated,
some of these roving wiretaps do put us into the 21st century with the
use of cell phones and disposable cell phones. So the roving wiretap is
necessary. But it needs oversight. And I think this amendment will go a
long way to making sure that that process is not abused.
Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Iowa (Mr.
Boswell).
Mr. BOSWELL. Mr. Chairman, I thank the gentleman for yielding me the
time. I also thank the gentleman from California (Mr. Issa) for this
amendment. This section of the PATRIOT Act authorizes expansive
authority for John Doe roving wiretaps, taps of phones and computers
when neither the location nor the identity of the target are known.
The Issa amendment further improves the amendment that I offered
during the Intelligence Committee markup of the PATRIOT Act
reauthorization bill. My amendment, I am pleased to say, was
unanimously accepted by the entire committee and is included in the
base bill before the House today.
The Issa amendment appropriately defines the term ``reasonable period
for filing return'' as not more than 15 days. It assures the Foreign
Intelligence Surveillance Court, we often call it the FISA court, will
receive information related to John Doe roving wiretaps in a timely
manner by removing any ambiguity associated with the term
``reasonable.'' It makes it clear to every FBI agent, DOJ lawyer and
judge from the start, this is a 15-day limit on providing the court
with information related to John Doe roving wiretaps. This is a good
fix to a good provision that further strengthens the amendment to the
PATRIOT Act.
I urge my colleagues to support this amendment. I thank the gentleman
from California for offering it.
Mr. SCOTT of Virginia. Mr. Chairman, I yield 1\1/2\ minutes to the
gentlewoman from California (Ms. Zoe Lofgren), a member of the
Judiciary Committee.
Ms. ZOE LOFGREN of California. Mr. Chairman, I support this amendment
although it does not make some of the changes recommended by Mr. Scott
in committee about ascertainment and minimization that we believe are
important. It would allow for the requirement of oversight, which I
think is important. The chairman has said many times that hearings have
been held. They were, but they were basically held since April. We do
have a tendency to postpone our work until it must be done.
One of the things that I hope we will take a look at that has not
been discussed is section 209 relative to obtaining electronic
information with a subpoena. That is a routine matter that caused no
concern because it stored electronic data and that is not new law.
The reason why we need to look at it before 10 years from now is that
as technology changes and all telephone communication becomes Voice
Over Internet Protocol, theoretically every phone call would be subject
to seizure by subpoena, which is not something I think any of us would
agree we intend to do. That should be a wiretap standard and it may
drift down to a subpoena standard. That is why we need oversight, not
because there is a bad guy out there necessarily, but because the
technology is going to change and change swiftly and potentially very
much alter what we think we are doing here today.
Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the
gentleman from Massachusetts (Mr. Delahunt), a member of the Judiciary
Committee.
Mr. DELAHUNT. I thank the gentleman for yielding me this time.
Mr. Chairman, I want to associate myself with the remarks of the
gentlewoman from California (Ms. Zoe Lofgren). And I also want to
address the issue of oversight. And let me be very clear. The chairman
has been most aggressive when it comes to oversight, and I want to
publicly commend him, not just in terms of the PATRIOT Act, but many
other issues that are within the jurisdiction of the Judiciary
Committee.
However, this is not about this particular chairman. It is about the
responsibility of future members of the
[[Page H6254]]
Judiciary Committee to exercise that responsibility. And I have a
concern about oversight because, let us be honest, it is not easy
dealing with the executive branch. We have all had that experience. We
reach conclusions, but we really do not know.
I can remember when the chairman himself discussed issuing a subpoena
to bring the former Attorney General, Mr. Ashcroft, before the
committee to provide us information on the so-called heavy guidelines.
That is what was necessary.
Just recently, I read where the vice chair of the Government Reform
Committee, looking into the expenditures of monies involving the
development for the Fund of Iraq, expressed frustration with the lack
of cooperation coming from the Pentagon.
I have served on an invitation basis under Chairman Dan Burton
investigating the misconduct of the FBI in the Boston office, and
again, it required the threat of a contempt petition to gain
information from the Department of Justice. If we need to go that far
then to exercise our oversight constitutional responsibility, it is not
an easy job to do. So that is why all of the discussions today about
oversight are framed in that context.
Mr. ISSA. Mr. Chairman, I yield myself such time as I may consume.
I want to assure the gentlewoman from California that her concerns on
electronic data and the fact that in an era of VOIP that we do have to
look at that. I serve with the gentlewoman in California on many of the
caucuses that deal with that. I look forward to both in Judiciary and,
quite candidly, in other committees of jurisdiction here in the
Congress to continue to work on properly identifying and modernizing
how that is going to be interpreted. I think it is beyond the scope of
the PATRIOT Act today, but it certainly is not beyond the Congress to
have to bring things up to snuff, and I look forward to working with
the gentlewoman from California.
Mr. Chairman, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I yield back the balance of my
time.
Mr. ISSA. Mr. Chairman, I yield myself such time as I may consume.
I will just close quickly in thanking the chairman, the ranking
member, the staffs for the hard work that led to the underlying bill,
but also to this particular amendment. This was done on a bipartisan
basis. There was give and take.
Over on the Senate side there is a companion that is somewhat similar
that has, I believe, a 7-day timeline, and undoubtedly we will work
together in conference to reconcile those two. But the good work done
on a bipartisan basis in the House has led to what I believe is the
right compromise, although I certainly will work with the other body.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from California (Mr. Issa).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. ISSA. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from California
(Mr. Issa) will be postponed.
{time} 1530
The Acting CHAIRMAN (Mr. Hastings of Washington). It is now in order
to consider amendment No. 4 printed in House Report 109-178.
Amendment No. 4 Offered by Mrs. Capito
Mrs. CAPITO. Mr. Chairman, I offer an amendment.
The Acting Chairman. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 4 offered by Mrs. Capito:
Add at the end the following:
SEC.__. ATTACKS AGAINST RAILROAD CARRIERS AND MASS
TRANSPORTATION SYSTEMS.
(a) In General.--Chapter 97 of title 18, United States
Code, is amended by striking sections 1992 through 1993 and
inserting the following:
``Sec. 1992. Terrorist attacks and other violence against
railroad carriers and against mass transportation systems
on land, on water, or through the air
``(a) General Prohibitions.--Whoever, in a circumstance
described in subsection (c), knowingly--
``(1) wrecks, derails, sets fire to, or disables railroad
on-track equipment or a mass transportation vehicle;
``(2) with intent to endanger the safety of any person, or
with a reckless disregard for the safety of human life, and
without the authorization of the railroad carrier or mass
transportation provider--
``(A) places any biological agent or toxin, destructive
substance, or destructive device in, upon, or near railroad
on-track equipment or a mass transportation vehicle; or
``(B) releases a hazardous material or a biological agent
or toxin on or near any property described in subparagraph
(A) or (B) of paragraph (3);
``(3) sets fire to, undermines, makes unworkable, unusable,
or hazardous to work on or use, or places any biological
agent or toxin, destructive substance, or destructive device
in, upon, or near any--
``(A) tunnel, bridge, viaduct, trestle, track,
electromagnetic guideway, signal, station, depot, warehouse,
terminal, or any other way, structure, property, or
appurtenance used in the operation of, or in support of the
operation of, a railroad carrier, without the authorization
of the railroad carrier, and with intent to, or knowing or
having reason to know such activity would likely, derail,
disable, or wreck railroad on-track equipment;
``(B) garage, terminal, structure, track, electromagnetic
guideway, supply, or facility used in the operation of, or in
support of the operation of, a mass transportation vehicle,
without the authorization of the mass transportation
provider, and with intent to, or knowing or having reason to
know such activity would likely, derail, disable, or wreck a
mass transportation vehicle used, operated, or employed by a
mass transportation provider; or
``(4) removes an appurtenance from, damages, or otherwise
impairs the operation of a railroad signal system or mass
transportation signal or dispatching system, including a
train control system, centralized dispatching system, or
highway-railroad grade crossing warning signal, without
authorization from the railroad carrier or mass
transportation provider;
``(5) with intent to endanger the safety of any person, or
with a reckless disregard for the safety of human life,
interferes with, disables, or incapacitates any dispatcher,
driver, captain, locomotive engineer, railroad conductor, or
other person while the person is employed in dispatching,
operating, or maintaining railroad on-track equipment or a
mass transportation vehicle;
``(6) commits an act, including the use of a dangerous
weapon, with the intent to cause death or serious bodily
injury to any person who is on property described in
subparagraph (A) or (B) of paragraph (3), except that this
subparagraph shall not apply to rail police officers acting
in the course of their law enforcement duties under section
28101 of title 49, United States Code;
``(7) conveys false information, knowing the information to
be false, concerning an attempt or alleged attempt that was
made, is being made, or is to be made, to engage in a
violation of this subsection; or
``(8) attempts, threatens, or conspires to engage in any
violation of any of paragraphs (1) through (7);
shall be fined under this title or imprisoned not more than
20 years, or both.
``(b) Aggravated Offense.--Whoever commits an offense under
subsection (a) of this section in a circumstance in which--
``(1) the railroad on-track equipment or mass
transportation vehicle was carrying a passenger or employee
at the time of the offense;
``(2) the railroad on-track equipment or mass
transportation vehicle was carrying high-level radioactive
waste or spent nuclear fuel at the time of the offense;
``(3) the railroad on-track equipment or mass
transportation vehicle was carrying a hazardous material at
the time of the offense that--
``(A) was required to be placarded under subpart F of part
172 of title 49, Code of Federal Regulations; and
``(B) is identified as class number 3, 4, 5, 6.1, or 8 and
packing group I or packing group II, or class number 1, 2, or
7 under the hazardous materials table of section 172.101 of
title 49, Code of Federal Regulations; or
``(4) the offense results in the death of any person;
shall be fined under this title or imprisoned for any term of
years or life, or both. In the case of a violation described
in paragraph (2) of this subsection, the term of imprisonment
shall be not less than 30 years; and, in the case of a
violation described in paragraph (4) of this subsection, the
offender shall be fined under this title and imprisoned for
life and be subject to the death penalty.
``(c) Circumstances Required for Offense.--A circumstance
referred to in subsection (a) is any of the following:
``(1) Any of the conduct required for the offense is, or,
in the case of an attempt, threat, or conspiracy to engage in
conduct, the conduct required for the completed offense would
be, engaged in, on, against, or affecting a mass
transportation provider or railroad carrier engaged in or
affecting interstate or foreign commerce.
[[Page H6255]]
``(2) Any person travels or communicates across a State
line in order to commit the offense, or transports materials
across a State line in aid of the commission of the offense.
``(d) Definitions.--In this section--
``(1) the term `biological agent' has the meaning given to
that term in section 178(1);
``(2) the term `dangerous weapon' means a weapon, device,
instrument, material, or substance, animate or inanimate,
that is used for, or is readily capable of, causing death or
serious bodily injury, including a pocket knife with a blade
of more than 2\1/2\ inches in length and a box cutter;
``(3) the term `destructive device' has the meaning given
to that term in section 921(a)(4);
``(4) the term `destructive substance' means an explosive
substance, flammable material, infernal machine, or other
chemical, mechanical, or radioactive device or material, or
matter of a combustible, contaminative, corrosive, or
explosive nature, except that the term `radioactive device'
does not include any radioactive device or material used
solely for medical, industrial, research, or other peaceful
purposes;
``(5) the term `hazardous material' has the meaning given
to that term in chapter 51 of title 49;
``(6) the term `high-level radioactive waste' has the
meaning given to that term in section 2(12) of the Nuclear
Waste Policy Act of 1982 (42 U.S.C. 10101(12));
``(7) the term `mass transportation' has the meaning given
to that term in section 5302(a)(7) of title 49, except that
the term includes school bus, charter, and sightseeing
transportation;
``(8) the term `on-track equipment' means a carriage or
other contrivance that runs on rails or electromagnetic
guideways;
``(9) the term `railroad on-track equipment' means a train,
locomotive, tender, motor unit, freight or passenger car, or
other on-track equipment used, operated, or employed by a
railroad carrier;
``(10) the term `railroad' has the meaning given to that
term in chapter 201 of title 49;
``(11) the term `railroad carrier' has the meaning given to
that term in chapter 201 of title 49;
``(12) the term `serious bodily injury' has the meaning
given to that term in section 1365;
``(13) the term `spent nuclear fuel' has the meaning given
to that term in section 2(23) of the Nuclear Waste Policy Act
of 1982 (42 U.S.C. 10101(23));
``(14) the term `State' has the meaning given to that term
in section 2266;
``(15) the term `toxin' has the meaning given to that term
in section 178(2); and
``(16) the term `vehicle' means any carriage or other
contrivance used, or capable of being used, as a means of
transportation on land, on water, or through the air.''.
(b) Conforming Amendments.--
(1) The table of sections at the beginning of chapter 97 of
title 18, United States Code, is amended--
(A) by striking ``RAILROADS'' in the chapter heading and
inserting ``RAILROAD CARRIERS AND MASS TRANSPORTATION SYSTEMS
ON LAND, ON WATER, OR THROUGH THE AIR'';
(B) by striking the items relating to sections 1992 and
1993; and
(C) by inserting after the item relating to section 1991
the following:
``1992. Terrorist attacks and other violence against railroad carriers
and against mass transportation systems on land, on
water, or through the air.''.
(2) The table of chapters at the beginning of part I of
title 18, United States Code, is amended by striking the item
relating to chapter 97 and inserting the following:
``97. Railroad carriers and mass transportation systems on land, on
water, or through the air...................................1991''.
(3) Title 18, United States Code, is amended--
(A) in section 2332b(g)(5)(B)(i), by striking ``1992
(relating to wrecking trains), 1993 (relating to terrorist
attacks and other acts of violence against mass
transportation systems),'' and inserting ``1992 (relating to
terrorist attacks and other acts of violence against railroad
carriers and against mass transportation systems on land, on
water, or through the air),'';
(B) in section 2339A, by striking ``1993,''; and
(C) in section 2516(1)(c) by striking ``1992 (relating to
wrecking trains),'' and inserting ``1992 (relating to
terrorist attacks and other acts of violence against railroad
carriers and against mass transportation systems on land, on
water, or through the air),''.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the
gentlewoman from West Virginia (Mrs. Capito) and the gentleman from
Virginia (Mr. Scott) each will control 5 minutes.
The Chair recognizes the gentlewoman from West Virginia (Mrs.
Capito).
Mrs. CAPITO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, millions of Americans travel to work, school and other
activities aboard trains, buses, planes, and other forms of mass
transportation. Our railways are also a primary method of shipping raw
materials and manufactured goods across the country.
The openness of our rail and mass transportation network makes it a
target for terrorists who would attack our Nation. The network is also
a target for people to make empty threats or disable on-track
materials. These actions put rail employees and passengers at risk.
Threats and sabotage against railways also harm interstate commerce by
causing delays on important transportation corridors.
Richard Reid, now known as the Shoe Bomber, actually had a charge
against him dismissed because current law does not explicitly define an
airplane as a vehicle for the purpose of prosecuting. This amendment
would change that and bring updated and uniform protections to all
forms of railroad carriers and mass transportation providers.
My amendment establishes penalties of up to 20 years for a person who
knowingly wrecks, derails, or sets fire to a rail or mass
transportation vehicle or knowingly disables on-track equipment or
signals. The same penalty applies for conspiracy or threats against a
rail or mass transportation system.
The penalty is increased with life imprisonment with death-penalty
eligibility if an attack results in the death of a person.
My amendment allows the courts to consider an attack against a train
carrying hazardous materials as an aggravated circumstance. The
amendment includes a 30-year minimum sentence for an attack on a train
carrying high-level radioactive waste or spent nuclear fuel.
I first offered this amendment last October in the wake of the
terrorist attack against the rail system in Madrid. The House passed
this amendment on the 9/11 Commission Implementation Act, but it was
removed in conference with the Senate. The tragic attacks on London on
July 7 and another attack there earlier today have demonstrated again
the dangers facing rail and transit systems in the U.S. and throughout
the world.
We must not wait for another attack here at home to modernize our
criminal penalties for attacks and sabotage against our transportation
system.
Mr. SENSENBRENNER. Mr. Chairman, will the gentlewoman yield?
Mrs. CAPITO. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Chairman, I am pleased to support the
gentlewoman's amendment and believe that it is an important
consolidation in the criminal law relative to attacks against mass
transportation systems.
First, we should not have different crimes and different penalties
depending upon which type of mass transportation system is attacked. We
should have uniform penalties and uniform definitions of criminal
activity so someone who attacks a railroad will get the same penalty as
someone would in a similar attack against a subway system or a bus or
an airplane.
Secondly, I think we have to broaden the definition of what is
``attacked'' to make sure that attacks against support systems for mass
transportation systems are treated the same way as an attack against
the transportation system itself. We should not have a lesser penalty
if you put a bomb in the station than if you blow up a train while it
is crossing a bridge over a big gorge.
And I also think we ought to ensure that terrorists who attack these
systems are punished with appropriate severity. The gentlewoman's
amendment does all of these things, and I would urge its support and
unanimous adoption by the House.
Mrs. CAPITO. Reclaiming my time, I thank the gentleman for his
support.
Mr. Chairman, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself 2 minutes.
Mr. Chairman, as it has been indicated, this amendment involves a lot
of new definitions. It would be helpful if we had considered this in
committee where we could have gotten the definitions straight.
This is a complex rewrite of two different sections, 18 U.S.C. 1992
and 1993, which involve wrecking trains and attacks on mass
transportation systems.
First, it involves mandatory minimums, and we know from our committee
deliberations that the Judicial Conference writes us a letter every
time we consider a new mandatory minimum to remind us that mandatory
minimums violate common sense. If it is a commonsense sentence, it
should
[[Page H6256]]
be applied. If it is not a commonsense sentence, it has to be applied
anyway.
In addition to that, there are problems with the death penalties in
the bill. It would allow death penalties for conspiracy. That offers up
constitutional questions. It also would create new death penalties even
in States that do not include a death penalty.
Mr. Chairman, if we are going to deal with attacks on mass transit,
it would be helpful if we would put the money into port security and
rail security and bus security and fund those resources. That would go
a long way in making us more secure. Having four amendments like this
when we have insufficient time to deliberate is not substantially as
helpful as the money would have been in making us more secure.
Mr. Chairman, I reserve the balance of my time.
Mrs. CAPITO. Mr. Chairman, I yield myself such time as I may consume.
I would like to respond to the gentleman from Virginia (Mr. Scott). I
appreciate his comments.
The mandatory minimums in this amendment do not apply to threats or
conspiracies. A person found guilty of a threat or conspiracy could
face a sentence up to 20 years. A 30-year mandatory sentence is
required for someone who attacks a train carrying nuclear fuel and
high-level radioactive waste. Quite frankly, I think that is extremely
appropriate and severe, and what we are trying to do here is create
these statutes as a deterrent.
Certainly I agree we need to put money into port security around the
Nation, and we are doing that; but we need to go at this problem of
terrorism with a full frontal attack.
I would like to say when we considered this, this amendment has been
around for about a year. We considered it last year and the gentleman
from Virginia (Mr. Scott) asked that we consider it in the PATRIOT Act
and that is what we are dealing with today. So I think it is
appropriate.
Mr. Chairman, I reserve the balance of my time.
Mr. SCOTT of Virginia. Mr. Chairman, I yield 2 minutes to the
gentleman from Michigan (Mr. Conyers), the ranking member of the
Committee on the Judiciary.
Mr. CONYERS. Mr. Chairman, I thank the gentleman from Virginia (Mr.
Scott) for yielding me time.
Could I ask the gentleman from Virginia (Mr. Scott) or the gentleman
from Massachusetts (Mr. Delahunt), is this not kind of unusual? There
have been no hearings and we are combining the death penalty by putting
together two substantial terrorist crimes, section 1992 and 1993.
Well, maybe I should ask the author of the bill, if he is on the
floor, why this has not had committee consideration.
Mr. SCOTT of Virginia. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Virginia.
Mr. SCOTT of Virginia. Mr. Chairman, I would say that it would have
been extremely helpful if we could have considered that. We could have
got the definition straight, and we could have considered it in a more
deliberative process rather than trying to deal with it here on the
floor where we have some constitutional questions such as the death
penalty for conspiracy.
Mr. CONYERS. Right. Is the author of the amendment here?
I was wondering if this was sent over to the chairman of the
committee at some earlier point in time.
Mrs. CAPITO. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentlewoman from West Virginia.
Mrs. CAPITO. Yes. This is the identical amendment that was considered
last year in October, and it was also passed in the House Intelligence
Reauthorization Act that we passed. So this amendment has been
considered several times in this House.
Mr. CONYERS. Reclaiming my time, I am sorry I was not on the
committee the day they had the hearing, but normally death penalty
matters are not brought to the floor this way. Normally I thought it
was the jurisdiction of the Subcommittee on Criminal Justice in the
Committee on the Judiciary of the House that would be considering this
matter.
The Acting CHAIRMAN. The gentlewoman from West Virginia (Mrs. Capito)
has 30 seconds remaining. The gentleman from Virginia (Mr. Scott) has
the right to close.
Mrs. CAPITO. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I would say in closing this has been considered in the
past. It has passed. It passed on a voice vote last October. I think in
view of what is happening to the mass transit systems around the world,
we have heard a lot of hue and cry about helping to protect our mass
transit systems in this country. And I think by making standard
criminal penalties, we are going a step in the right direction to use
these penalties as a deterrence to terrorism on our mass transit and
rail systems. I urge passage of the amendment.
Mr. SCOTT of Virginia. Mr. Chairman, I yield myself 10 seconds. I say
that we need money for port security and rail security funding.
Mr. Chairman, I yield the balance of my time to the gentlewoman from
California (Ms. Zoe Lofgren).
Ms. ZOE LOFGREN of California. Mr. Chairman, I would just note that
we have spent since 9/11 only a couple hundred million dollars in
homeland security to secure our rail systems. That is the real problem
here. We spent nearly $25 billion on air security and a couple of
hundred million on rail.
I would also not that although I do not oppose the death penalty, I
doubt very much the death penalty is going to deter the suicide
bombers. I think we need to look at not deterrents but at actually
preventing the terrorists from harming Americans by protecting the
systems and putting our money where our mouth is and in securing these
rail systems which we have failed to do.
As my colleague on the Committee on the Judiciary knows, I also serve
on the Committee on Homeland Security. We are well aware of how
deficient our efforts have been in this regard. That is the crux of
this problem, not threatening suicide bombers with the death penalty.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentlewoman from West Virginia (Mrs. Capito).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mrs. CAPITO. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentlewoman from West
Virginia (Mrs. Capito) will be postponed.
It is now in order to consider amendment No. 5 printed in House
Report 109-178.
Amendment No. 5 Offered by Mr. Flake
Mr. FLAKE. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 5 offered by Mr. Flake:
At the end of the bill, insert the following:
SEC. __. JUDICIAL REVIEW OF NATIONAL SECURITY LETTERS.
Chapter 223 of title 18, United States Code, is amended--
(1) by inserting at the end of the table of sections the
following new item:
``3511. Judicial review of requests for information.''
; and
(2) by inserting after section 3510 the following:
``Sec. 3511. Judicial review of requests for information
``(a) The recipient of a request for records, a report, or
other information under section 2709(b) of this title,
section 625(a) or (b) or 626(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947
may, in the United States district court for the district in
which that person or entity does business or resides,
petition for an order modifying or setting aside the request.
The court may modify or set aside the request if compliance
would be unreasonable or oppressive.
``(b) The recipient of a request for records, a report, or
other information under section 2709(b) of this title,
section 625(a) or (b) or 626(a) of the Fair Credit Reporting
Act, section 1114(a)(5)A) of the Right to Financial Privacy
Act, or section 802(a) of the National Security Act of 1947,
may petition any court described in subsection (a) for an
order modifying or setting aside a nondisclosure requirement
imposed in connection with such a request.
``(1) If the petition is filed within one year of the
request for records, a report, or other information under
section 2709(b) of this title, section 625(a) or (b) or
626(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of
[[Page H6257]]
the Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the court may modify or set
aside such a nondisclosure requirement if it finds that there
is no reason to believe that disclosure may endanger the
national security of the United States, interfere with a
criminal, counterterrorism, or counterintelligence
investigation, interfere with diplomatic relations, or
endanger the life or physical safety of any person. The
certification made at the time of the request that disclosure
may endanger of the national security of the United States or
interfere with diplomatic relations shall be treated as
conclusive unless the court finds that the certification was
made in bad faith.
``(2) If the petition is filed one year or more after the
request for records, a report, or other information under
section 2709(b) of this title, section 625(a) or (b) or
626(a) of the Fair Credit Reporting Act, section 1114
(a)(5)(A) of the Right to Financial Privacy Act, or section
802(a) of the National Security Act of 1947, the issuing
officer, within ninety days of the filing of the petition,
shall either terminate the nondisclosure requirement or re-
certify that disclosure may result a danger to the national
security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to the life
or physical safety of any person. In the event or re-
certification, the court may modify or set aside such a
nondisclosure requirement if it finds that there is no reason
to believe that disclosure may endanger the national security
of the United States, interfere with a criminal,
counterterrorism, or counterintelligence investigation,
interfere with diplomatic relations, or endanger the life or
physical safety of any person. The re-certification that
disclosure may endanger of the national security of the
United States or interfere with diplomatic relations shall be
treated as conclusive unless the court finds that the re-
certification was made in bad faith. If the court denies a
petition for an order modifying or setting aside a
nondisclosure requirement under this paragraph, the recipient
shall be precluded for a period of one year from filing
another petition to modify or set aside such nondisclosure
requirement.
``(c) In the case of a failure to comply with a request for
records, a report, or other information made to any person or
entity under section 2709(b) of this title, section 625(a) or
(b) or 626(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947, the
Attorney General may invoke the aid of any court of the
United States within the jurisdiction in which the
investigation is carried on or the person or entity resides,
carries on business, or may be found, to compel compliance
with the request. The court may issue an order requiring the
person or entity to comply with the request. Any failure to
obey the order of the court may be punished by the court as
contempt thereof. Any process under this section may be
served in any judicial district in which the person or entity
may be found.
``(d) In all proceedings under this section, subject to any
right to an open hearing in a contempt proceeding, the court
must close any hearing to the extent necessary to prevent an
unauthorized disclosure of a request for records, a report,
or other information made to any person or entity under
section 2709(b) of this title, section 625(a) or (b) or
626(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947.
Petitions, filings, records, orders, and subpoenas must also
be kept under seal to the extent and as long as necessary to
prevent the unauthorized disclosure of a request for records,
a report, or other information made to any person or entity
under section 2709(b) of this title, section 625(a) or (b) or
626(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947.
``(e) In all proceedings under this section, the court
shall, upon the Federal Government's request, review the
submission of the Government, which may include classified
information, ex parte and in camera.''.
SEC. __. CONFIDENTIALITY OF NATIONAL SECURITY LETTERS.
(a) Section 2709(c) of title 18, United States Code, is
amended to read:
``(c) Prohibition of Certain Disclosure.--
``(1) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower than
Deputy Assistant Director at Bureau headquarters or a Special
Agent in Charge in a Bureau field office designated by the
Director, certifies that otherwise there may result a danger
to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no wire
or electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any person
(other than those to whom such disclosure is necessary in
order to comply with the request or an attorney to obtain
legal advice with respect to the request) that the Federal
Bureau of Investigation has sought or obtained access to
information or records under this section.
``(2) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement
under paragraph (1).
``(3) Any recipient disclosing to those persons necessary
to comply with the request or to an attorney to obtain legal
advice with respect to the request shall inform such person
of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject
to the same prohibitions on disclosure under paragraph
(1).''.
(b) Section 625(d) of the Fair Credit Reporting Act (15
U.S.C. 1681u(d)) is amended to read:
``(d) Confidentiality.--
``(1) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower than
Deputy Assistant Director at Bureau headquarters or a Special
Agent in Charge in a Bureau field office designated by the
Director, certifies that otherwise there may result a danger
to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no
consumer reporting agency or officer, employee, or agent of a
consumer reporting agency shall disclose to any person (other
than those to whom such disclosure is necessary in order to
comply with the request or an attorney to obtain legal advice
with respect to the request) that the Federal Bureau of
Investigation has sought or obtained the identity of
financial institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c), and no consumer
reporting agency or officer, employee, or agent of a consumer
reporting agency shall include in any consumer report any
information that would indicate that the Federal Bureau of
Investigation has sought or obtained such information on a
consumer report.
``(2) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement
under paragraph (1).
``(3) Any recipient disclosing to those persons necessary
to comply with the request or to an attorney to obtain legal
advice with respect to the request shall inform such persons
of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject
to the same prohibitions on disclosure under paragraph
(1).''.
(c) Section 626(c) of the Fair Credit Reporting Act (15
U.S.C. 1681v(c)) is amended to read:
``(c) Confidentiality.--
``(1) If the head of a government agency authorized to
conduct investigations or, or intelligence or
counterintelligence activities or analysis related to,
international terrorism, or his designee, certifies that
otherwise there may result a danger to the national security
of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to the life
or physical safety of any person, no consumer reporting
agency or officer, employee, or agent of such consumer
reporting agency, shall disclose to any person (other than
those to whom such disclosure is necessary in order to comply
with the request or an attorney to obtain legal advice with
respect to the request), or specify in any consumer report,
that a government agency has sought or obtained access to
information under subsection (a).
``(2) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement
under paragraph (1).
``(3) Any recipient disclosing to those persons necessary
to comply with the request or to any attorney to obtain legal
advice with respect to the request shall inform such persons
of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject
to the same prohibitions on disclosure under paragraph
(1).''.
(d) Section 1114(a)(5)(D) of the Right to Financial Privacy
Act (12 U.S.C. 3414(a)(5)(D)) is amended to read:
``(D) Prohibition of certain disclosure.--
``(i) If the Director of the Federal Bureau of
Investigation, or his designee in a position not lower than
Deputy Assistant Director at Bureau headquarters or a Special
Agent in Charge in a Bureau field office designated by the
Director, certifies that otherwise there may result a danger
to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no
financial institution, or officer, employee, or agent of such
institution, shall disclose to any person (other than those
to whom such disclosure is necessary in order to comply with
the request or an attorney to obtain legal advice with
respect to the request) that the Federal Bureau of
Investigation has sought or obtained access to a customer's
or entity's financial records under paragraph (5).
``(ii) The request shall notify the person or entity to
whom the request is directed of the nondisclosure requirement
under paragraph (1).
``(iii) Any recipient disclosing to those persons necessary
to comply with the request or to an attorney to obtain legal
advice with respect to the request shall inform such persons
of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject
to the same prohibitions on disclosure under paragraph
(1).''.
[[Page H6258]]
(e) Section 802(b) of the National Security Act of 1947 (50
U.S.C. 436(b)) is amended to read as follows:
``(b) Prohibition of Certain Disclosure.--
``(1) If an authorized investigative agency described in
subsection (a) certifies that otherwise there may result a
danger to the national security of the United States,
interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical
safety of any person, no governmental or private entity, or
officer, employee, or agent of such entity, may disclose to
any person (other than those to whom such disclosure is
necessary in order to comply with the request or an attorney
to obtain legal advice with respect to the request) that such
entity has received or satisfied a request made by an
authorized investigative agency under this section.
``(2) The request shall notify the person or entity to whom
the request is directed of the nondisclosure requirement
under paragraph (1).
``(3) Any recipient disclosing to those persons necessary
to comply with the request or to an attorney to obtain legal
advice with respect to the request shall inform such persons
of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject
to the same prohibitions on disclosure under paragraph
(1).''.
SEC. __. VIOLATIONS OF NONDISCLOSURE PROVISIONS OF NATIONAL
SECURITY LETTERS.
Section 1510 of title 18, United States Code, is amended by
adding at the end the following:
``(e) Whoever knowingly violates section 2709(c)(1) of this
title, sections 625(d) or 626(c) of the Fair Credit Reporting
Act (15 U.S.C. 1681u(d) or 1681v(c)), section 1114(a)(3) or
1114(a)(5)(D) of the Right to Financial Privacy Act (12
U.S.C. 3414(a)(3) or 3414(a)(5)(D)), or section 802(b) of the
National Security Act of 1947 (50 U.S.C. 436(b)) shall be
imprisoned for not more than one year, and if the violation
is committed with the intent to obstruct an investigation or
judicial proceeding, shall be imprisoned for not more than
five years.''.
SEC. __. REPORTS.
Any report made to a committee of Congress regarding
national security letters under section 2709(c)(1) of title
18, United States Code, sections 625(d) or 626(c) of the Fair
Credit Reporting Act (15 U.S.C. 1681u(d) or 1681v(c)),
section 1114(a)(3) or 1114(a)(5)(D) of the Right to Financial
Privacy Act (12 U.S.C. 3414(a)(3) or 3414(a)(5)(D)), or
section 802(b) of the National Security Act of 1947 (50
U.S.C. 436(b)) shall also be made to the Committees on the
Judiciary of the House of Representatives and the Senate.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the gentleman
from Arizona (Mr. Flake) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I am offering this amendment with my good friend, the
gentleman from Massachusetts (Mr. Delahunt). I want to assure my
colleagues that this amendment has nothing to do with exporting freedom
to Cuba. We have teamed up on a few of those items. We are also teaming
up with other Members of the PATRIOT Act Reform Caucus, the gentleman
from Idaho (Mr. Otter) and the gentleman from New York (Mr. Nadler), on
this amendment.
The Flake-Delahunt-Otter-Nadler amendment provides critical reforms
to national security letters. We have heard a lot about this today.
First, this amendment specifies that the recipient of a national
security letter may consult with an attorney and may also challenge
national security letters in court. A judge may throw out the national
security letter by request of the government ``if compliance would be
unreasonable or oppressive to the recipient of the national security
letter.''
The amendment also allows the recipient to challenge the
nondisclosure requirement in the national security letter request. A
judge could modify or remove the nondisclosure requirement of the
national security letter ``if it finds that there is no reason to
believe that disclosure may endanger the national security of the
United States, interfere with criminal counterterrorism or
counterintelligence investigation, interfere with diplomatic relations,
or endanger the life or physical safety of any person.''
Another important reform to this amendment is that it modifies the
nondisclosure requirements so that recipients may tell individuals whom
they work with about the national security letter request in order to
comply with the national security request.
The amendment also contains penalties for individuals who violate the
nondisclosure requirements of a national security letter and requires
that reports on national security letters by Federal agencies to
Congress must also be sent to the House and Senate Committees on the
Judiciary so we can exercise proper oversight.
{time} 1545
Mr. Chairman, I would like to thank again the gentleman from
Wisconsin (Mr. Sensenbrenner) and his staff in helping to write and to
work with me on this amendment. It is important to strengthening the
rights of average American citizens who receive these national security
letters, and I urge my colleagues to accept this amendment.
Mr. SENSENBRENNER. Mr. Chairman, will the gentleman yield?
Mr. FLAKE. I yield to the gentleman from Wisconsin.
Mr. SENSENBRENNER. Mr. Chairman, I thank the gentleman for yielding
to me, and, Mr. Chairman, I rise in support of the amendment offered by
the gentleman from Arizona (Mr. Flake).
One of the things that the bill did in section 215 was to provide a
procedure for challenging a section 215 order. What this does is it
codifies procedures for challenging the receipt of national security
letters, and I think that this is a step in the right direction.
Let me say that a national security letter is never issued to the
target of an investigation. A place where it would be issued would be
to get records that are in the custody of someone who may have
information relative to the target of the investigation. For example,
it appears that one of the people who was involved in the London
bombing 2 weeks ago studied at the University of North Carolina. To get
the records of this person's attendance at the University of North
Carolina would be a subject of a national security letter. Now, I do
not know whether one has been issued or one has not been, but that is
an example of the type of information that the NSLs are used for.
This is a good amendment, Mr. Chairman, and I support it.
Mr. FLAKE. I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I ask unanimous consent to claim the time
in opposition to the amendment, though I am in support of the
amendment.
The Acting CHAIRMAN (Mr. Hastings of Washington). Without objection,
the gentleman from New York (Mr. Nadler) is recognized for 10 minutes.
There was no objection.
Mr. NADLER. Mr. Chairman, I yield 3 minutes to the gentleman from
Massachusetts (Mr. Delahunt).
Mr. DELAHUNT. Mr. Chairman, I thank the gentleman for yielding me
this time, and I applaud the cosponsors of this particular amendment
because it is a significant amendment.
As it was indicated, under the PATRIOT Act the FBI can merely assert
at this point in time that records are relevant to an intelligence
investigation. That can be just simply about foreign policy objectives.
In addition, it added a permanent nondisclosure requirement which, if
violated, imposed severe sanctions on the recipient of the so-called
national security letter.
This was truly a profound expansion of government power where the
subject of the order need not be suspected of any involvement in
terrorism whatsoever, where there was no judicial review, where there
was no statutory right to challenge, and where the order gags the
recipient from telling anyone about it. A Federal District Court in New
York has already ruled that the national security letters for
communication records, as amended by the PATRIOT Act, are
unconstitutional because they are coercive and violate the fourth
amendment prohibition against unreasonable searches and the first
amendment as a result of the gag order.
This amendment, I would submit, attempts to salvage the use of
national security letters in intelligence investigations so as to
comply with constitutional standards. It gives the recipient of a
national security letter his day in court. He can consult a lawyer. A
judge can reject or modify the FBI demand upon a finding that
compliance would be unreasonable or oppressive.
[[Page H6259]]
The recipient can also seek to modify or set aside the gag order if the
court makes certain findings that it was unnecessary. The amendment
goes further to modify the nondisclosure requirement so that the
recipients can tell other people with whom they work about the demand
so that they can comply with the order.
As I suggested, the current law is of dubious constitutionality, and
I would suggest this amendment would permit appropriate use of so-
called national security letters that would not only pass
constitutional muster but would be sound policy. It also, I believe,
strikes a more reasonable balance between privacy and freedom on the
one hand and national security on the other with only a negligible
burden imposed on the government, and so I urge passage.
Mr. FLAKE. Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, section 505 is one of the most, perhaps the most
egregious provision of the PATRIOT Act, and it provides essentially, as
was said before, that any Director of an FBI field office can issue a
national security letter directing the production of financial,
telephone, Internet and other records, period, without a court order,
without any judicial approval, and there is no provision for going to
courts to oppose that. The person whose privacy it is sought to invade
never knows about it because it is directed to a third party; namely,
the Internet service provider, the telephone company, or whoever.
Furthermore, they are prevented by the gag order provision of section
505 from ever telling the person whose privacy is affected or anyone
else about this.
The Federal Court in New York has ruled it unconstitutional for two
reasons. One, you cannot issue this kind of what amounts to an
intrusive search warrant without any judicial approval or provision for
getting judicial approval. That is a violation of the fourth amendment.
And, two, the gag order, the nondisclosure provision, was ruled as a
prior restraint on speech, the first amendment.
This amendment, which I am pleased to cosponsor, is an attempt to
solve these problems. It goes a considerable distance towards solving
these problems. I do not think it solves all the problems. It does not
make section 505 acceptable or even, in my opinion, constitutional, but
it goes a good distance towards doing that.
It solves the first problem by saying that you can get a national
security letter without going to court, but the recipient can go to
court to quash it. That is a minimum standard that ought to be adhered
to. This amendment does that, and I am very pleased it does that. It
allows the recipient of a national security letter to ask that the gag
order be set aside, and it sets limits on the gag order and says it has
to be renewed after a certain time period and you have to apply to a
court to extend it.
It fails, in my opinion, in that second provision to reach
constitutional status by saying that the showing the government has to
make to get an extension of the gag order, the affidavit by the
government officer asking for the extension, shall be treated as
conclusive unless the court finds that certification was made in bad
faith. So that is not really up to the judgment of the judge, and I do
not think that would satisfy the court on the first amendment. But it
goes a long way, as I said, toward making this less egregious a
violation of civil liberties and towards making it more constitutional.
I do not think it goes far enough but it is a step forward.
It also does not deal with the fact that section 505 should be
sunsetted. Because section 505, like some of the other sections we have
talked about, is a great expansion of surveillance and police powers,
and it may be a necessary one, although I do not agree with that, but
even if it is necessary we should be nervous about the expansion of
surveillance and police powers and we should revisit that and force
Congress to revisit it through using a sunset every so often.
So this amendment goes a considerable distance in the right
direction. It does not go far enough, in my opinion, to solve the
problems with section 505, but it does go several steps in the right
direction, and I commend the sponsor for introducing it, the main
sponsor for drafting it, and I support the amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. FLAKE. Mr. Chairman, I yield 2 minutes to the gentleman from
California (Mr. Daniel E. Lungren), a member of the Committee on the
Judiciary.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I thank the
gentleman for yielding me this time, and I rise in support of this
amendment.
Mr. Chairman, national security letters are sort of a strange beast.
It is kind of difficult to figure out what they are. They are sort of
like administrative subpoenas, but they are not actually administrative
subpoenas. They are limited in their scope. NSLs do not allow the FBI
to read the contents of communications but rather the records of
communication. That may seem like a legal nicety, but it is a major
difference. The Supreme Court has recognized those kinds of
differences.
Nonetheless, the recipients of these, while the Justice Department
has told us that they allow them to talk to their lawyers, if you look
at the statute as it exists now there seems to be a question about
that. This amendments makes its explicit. Also, currently under the
law, there is no enforcement mechanism when they do issue a national
security letter. This amendment allows such an enforcement mechanism by
going to a court.
So in a very real sense this amendment both protects those who would
receive one of these letters, and if they object to it they can go to
an attorney, they can fight it, and it also gives the government a
means of attempting to try and secure compliance with it. So in both
instances, I think what we have done is give a little more regularity
to it. We have given it a little terra firma here, and for that reason
I support it and would urge my colleagues to do the same.
Mr. NADLER. Mr. Chairman, how much time do I have remaining?
The Acting CHAIRMAN. The gentleman from New York has 3 minutes
remaining.
Mr. NADLER. Mr. Chairman, I yield the balance of my time to the
gentleman from Michigan (Mr. Conyers), the distinguished ranking member
on the committee.
Mr. CONYERS. Mr. Chairman, I thank the gentleman for yielding me this
time, the floor manager who is, I think, supporting the amendment, but
he gives some very compelling arguments against the amendment.
Let me pick up from there. The major problem is that under this
amendment the FBI can still compel personal records of anyone if they
are relevant to an investigation, even if the person whose records they
seek is not suspected of criminal or terrorist activities.
Is that correct? May I ask the author of this bill whether or not
that is true? Is it not true that the FBI can still compel personal
records even if a person is not suspected of any criminal or terrorist
activities?
Mr. FLAKE. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Arizona.
Mr. FLAKE. Mr. Chairman, what the PATRIOT Act did was to move or to
change the standard to relevance. There has to be a finding of
relevance. If it is relevant to an investigation, then it is in my view
proper they should be able to compel records.
Mr. CONYERS. Reclaiming my time, Mr. Chairman, what is new then? We
have got the law now, we have the amendment here.
Well, let me ask you this. Is the national security letter still
unconstitutional under the court ruling?
Mr. FLAKE. Mr. Chairman, if the gentleman will continue to yield,
there is a disagreement on what the court was actually ruling on,
whether they were ruling on the access to counsel or, my understanding
of it, whether or not the request itself was unconstitutional. If that
is the case, let the legal process take its course.
But I think what we need to do here is make sure that the agencies
have the tools they need, offering the protections we are offering
here.
Mr. CONYERS. So we do not know what the court was doing. It is not
clear, depending on what someone's interpretation is.
[[Page H6260]]
Well, let me ask you this. The amendment allows the recipient to
challenge the letter in court, but it can be quashed only if compliance
would be unreasonable or oppressive to the recipient?
{time} 1600
Mr. FLAKE. Mr. Chairman, if the gentleman would continue to yield, we
are offering in this amendment additional protections. We are ensuring
that those who receive these letters, and we have in other amendments
as well, have access to counsel, not only to respond to the inquiry,
but also to challenge in court.
Mr. CONYERS. Mr. Chairman, I thank the gentleman.
Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume.
Mr. BERMAN. Mr. Chairman, will the gentleman yield?
Mr. FLAKE. I yield to the gentleman from California.
Mr. BERMAN. I think underlying the gentleman from Michigan's
question, is this not about the difference between the FBI and law
enforcement using a national security letter to ask a bank to give it
the financial records of all of its customers versus asking the bank to
give it the financial records of the specific individuals it suspects
might be involved or that it is interested in? I think that is at the
heart of the question of the standard. That is why relevance to a
terrorist investigation is not an adequate standard. You want the focus
on something specific, rather than all of the bank's records of
everybody who uses that bank. You want the people who might have had
contact with the terrorist or suspected terrorist.
Mr. FLAKE. Mr. Chairman, part of what we have done in this amendment
is offer individuals the opportunity to challenge the scope of the
request. So whether or not it applies to them or additional people is
challengeable through this amendment. That is part of what we are doing
here.
Mr. BERMAN. Mr. Chairman, if the gentleman would continue to yield,
that requires the bank, not the customers who had nothing to do with
anything, to make the challenge.
Mr. FLAKE. The bank can make the challenge itself. The bank can
challenge the scope. They are the recipient of the national security
letter.
Mr. BERMAN. The bank is, not the customers of the bank.
Mr. FLAKE. That is correct.
Mr. CONYERS. Mr. Chairman, will the gentleman yield?
Mr. FLAKE. I yield to the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, I would ask the gentleman from Arizona if
he feels that this cures the problem, or does he have some of the
reluctance that the gentleman from New York, a co-author of the
amendment, has about it not going far enough.
Mr. FLAKE. Mr. Chairman, I have a great deal of respect for the
gentleman from New York. I tend not to be as concerned as he is at this
point. I share many of his concerns about the overall PATRIOT Act, and
we have worked to put many of the amendments in place to put ourselves
at rest. I thank him for his involvement. We have had great involvement
from both sides of the aisle here.
These amendments that I am offering today, virtually all of them, are
offered with Democrat support and cosponsorship. My name is not even at
the top of some of them. We have had good cooperation. I feel good
about this amendment, about the protection we have offered here, and
also to ensure that in cases where it is needed, we offer additional
tools for compliance with these requests as well. I am pleased with the
amendment. I urge my colleagues to support it.
Mr. CONYERS. Mr. Chairman, if the gentleman would continue to yield,
and we do not have any more time over here, that is why we are using
this process. But does the gentleman know there are new criminal
penalties in this part of 505 now added as a result of this amendment?
Mr. FLAKE. Yes.
Mr. CONYERS. Mr. Chairman, I thank the gentleman for his information.
Mr. FLAKE. Mr. Chairman, reclaiming my time, I just want to say in
closing, this has been a collaborative process. I appreciate those who
have worked with us, and again my appreciation goes to the chairman of
the committee for having such a thorough process and allowing us to
have amendments. As I mentioned, we had a markup that lasted over 12
hours. Many of these amendments were discussed at length, as were other
amendments. I appreciate that and urge support of the amendment.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Hastings of Washington). The question is on
the amendment offered by the gentleman from Arizona (Mr. Flake).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. FLAKE. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Arizona (Mr.
Flake) will be postponed.
It is now in order to consider amendment No. 6 printed in House
Report 109-178.
Amendment No. 6 Offered by Ms. Waters
Ms. WATERS. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 6 offered by Ms. Waters:
Add at the end the following:
SEC. 17. DEFENSE AGAINST GAG ORDERS.
A person who has received a non-disclosure order in
connection with records provided under the provisions of law
amended by sections 215 and 505 of the USA PATRIOT Act may
not be penalized for a disclosure if the disclosing person is
mentally incompetent or under undue stress, or for a
disclosure made because of a threat of bodily harm or a
threat to discharge the disclosing person from employment. In
order to avoid the penalty, the disclosing person must notify
the Federal Bureau of Investigation immediately of the
existence of the circumstance constituting the exemption.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the
gentlewoman from California (Ms. Waters) and the gentleman from
Wisconsin (Mr. Sensenbrenner) each will control 10 minutes.
The Chair recognizes the gentlewoman from California (Ms. Waters).
Ms. WATERS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I have this amendment that I place before this body. It
is an amendment that talks about gag orders. It talks about a provision
of law both in sections 215 and 550 that does not allow one who is the
target of an investigation or one who has assisted the FBI in gaining
records, access to records, to talk about the investigation, to let
people know they have been contacted, or that they in some way have
been involved in assisting the authorities in seeking information.
This amendment of mine is a very, very simple amendment that talks
about what happens to someone who is under a gag order who may, through
no fault of their own, place themselves in danger of being harmed or
being killed because someone finds out that they have been involved,
they are involved in the investigation in some way, and they are
threatened by the person who discovers that they have been involved in
the investigation; or what happens to someone who is employed at a
particular business where they give the FBI access to information. The
employer wants to know did they give out information, they cannot tell
them, they get fired from their job.
So I have raised the question about this gag order of what happens
when someone is placed in a position through no fault of their own that
they have to give up information. And someone may argue that in one
section of the law, 215, they have the right to get a lawyer and this
could be included in the information that they share with the lawyer
that would attempt to get them out from under the gag order. But we
know that there is nothing in 215 or 550 specifically that would
protect this person under the gag order.
Mr. Chairman, what I am attempting to do, and in the scheme of things
perhaps it is not that important because we have a PATRIOT Act, PATRIOT
Act II, that will basically extend two sections of the PATRIOT Act for
10 years, sections 206 and 215, access to businesses and other records
and roving wiretaps; and we have these 14 other sections of the PATRIOT
Act that are made permanent.
I suppose my colleagues and the people of America should be worried
about
[[Page H6261]]
all of this, all of what is being done in this PATRIOT Act in the name
of fighting terrorism. People should be wondering whether or not they
are being asked to give up their civil liberties, if they are being led
by the people that they elect to protect them to undermine their own
civil liberties.
This is not simply about the gag order under 215 or 550. This is
about gagging Americans, period. This is about saying shut up, do not
tell me what the Constitution guarantees you, we do not want to hear
that. We want you to understand that there are enough people in power
who believe that in order to exercise the power as they see it, they
have a right to undermine the Constitution of the United States of
America. Not only do they believe it, but they are selling it to you
based on fear and intimidation.
So my amendment in the scheme of things is not that important to try
and protect a person or some persons. My amendment really is about
giving me a platform to talk about how America and American citizens
are being gagged, how we are being told that no matter that folks have
really fought for this Constitution, no matter that we really had some
true times when we have had to stand up for the Constitution, and even
go to war to protect the Constitution. We are now being led to believe
that anything that is done, and that is what this PATRIOT Act is all
about, it goes beyond what anybody should have to expect in order to
fight terrorism.
This PATRIOT Act is not in the best interest of Americans. There are
those on the other side of the aisle who have gotten up today and said
I talked to a constituent who complained about the PATRIOT Act and I
said to that constituent how have you been harmed, and the constituent
could not explain it.
It is not about whether or not I feel my rights have been denied or
not. It is about whether or not the children of this Nation, the
children of the future, it is about whether all Americans are being
denied their civil liberties because they have been led into the
support of a PATRIOT Act that really just flies in the face of the
Constitution of the United States of America.
And so when I talk about the gag orders and I reference them in order
to frame an amendment or to have this platform to talk about this
PATRIOT Act, it is really about whether or not I am talking about all
Americans being gagged in a very, very clever and sophisticated way.
There are those who will not oppose this PATRIOT Act because they do
not want to be considered unpatriotic. I stand here in the Congress of
the United States questioning the wisdom of my colleagues on the
PATRIOT Act, and I dare anyone to say I am unpatriotic because I do it.
I do it because I am patriotic, and I live in an America that has
taught me that there is a Constitution that demands we as American
citizens question our government, that we do not allow our government
to do anything that they want to do.
I have been elected by the people, and I could be a part of this
charade of the government doing whatever we want to do in the name of
so-called terrorism, but I do not see myself as an elected official nor
do I see myself simply as a citizen that believes that the government
is right in everything that it does.
Because I do not believe that, I dare to question those on the other
side of the aisle and those on this side of the aisle. I dare those who
would wish to stand up and challenge me and charge me with not being
patriotic because I do so to get up here and debate me now on
patriotism.
And I will tell Members what patriotism is all about. Patriotism is
about a Constitution and a democracy that says America is different
from everybody else and that we have come through a time and a history
that has taught us that if you are to have a democracy, you must have
certain guarantees, and those guarantees are embodied in the
Constitution that guarantees us freedom of speech, freedom of movement,
freedom of religion, and freedom of privacy. Those are the things that
we should hold dear and we should fight to protect and we should hold
onto with everything that we have, with every ounce of energy that we
have.
Nobody, no elected official, no so-called leader is so smart they
should tell the American people do not worry about it, give up your
rights and give up your freedom, I know better than you. I hope that
somewhere in America, in some fourth and fifth grade out there, there
are teachers who are watching the debate on the PATRIOT Act. I hope
that these are the teachers who are teaching the Constitution of the
United States and the history of this Constitution, about how it
evolved and how it developed; and I hope they will teach them about the
amendments to the Constitution that strengthen it to make sure that we
embody in this Constitution all that may not have been thought about in
the original framing of it by way of amendment.
I hope that the teachers are able to say watch the debate on the
floor of the Congress of the United States so that you can understand
that there are some intrusions that are taking place today with the
PATRIOT Act that fly in the face of the Constitution.
{time} 1615
I want you to be aware of it because when you leave this class, when
you grow up to be whatever it is you are going to be, I expect that no
matter where you are, whether you are in the United States, abroad, no
matter where you are, you know how to stand up and fight for the
Constitution of the United States that guarantees certain rights and
privacies that are now being intruded upon with this kind of act.
Mr. Chairman, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I think every Member of this Congress, liberal or
conservative, Republican or Democrat, takes seriously the oath that we
took at the beginning of this Congress to preserve, protect, and defend
the Constitution of the United States against all enemies, foreign and
domestic.
The amendment that the gentlewoman from California has introduced is
going to make it very difficult to conduct any type of criminal or
terrorist investigation using a national security letter because it
basically eviscerates the nondisclosure rules that national security
letters and literally all other tools in criminal investigations have
attached to them.
I think the last thing in the world the American public wants to see
is if somebody gets a national security letter or a grand jury subpoena
or testifies before the grand jury, something in the newspaper that
says that John Doe is being investigated. And if John Doe is really
involved in criminal or terrorist activities, that is going to be a
tip-off that the feds are on the heels of John and maybe he ought to
flee the country or do other things to eliminate the evidence that
would be used to convict that person of the crime that he has either
committed or a crime that he is in a conspiracy with others to commit.
Let me say that by their very nature national security letters
involve our national security, and the national security letters are
usually not issued against the targets of investigations but to get
records that would establish evidence that could be used against the
target of the investigation. And if that evidence that was being
collected ended up being disclosed and became a matter of discourse in
the public press, I do not know how law enforcement would be able to
complete its investigation to go after those that are suspected of
criminal or terrorist activities.
But let me say there is another aspect to the gentlewoman's amendment
that I think is really bad policy and can really hurt somebody who is
innocent. Because of the nature and threat of terrorism, when there is
a tip that is sent to law enforcement, law enforcement is obligated to
investigate it. Now, that tip might be false. That tip might be a
malicious tip by a personal enemy against the person who had
information given to law enforcement. But, nonetheless, law enforcement
has got to proceed. And if they do their investigation and issue
national security letters and find out that the person that the tip was
lodged against is up to absolutely no criminal or terrorist activity,
if that person's name gets in the newspaper, their reputation is
destroyed even though they are innocent. So I think that the amendment
of the
[[Page H6262]]
gentlewoman from California is one that will end up leaking information
about an investigation of someone who may be guilty but also leaking
information about an incomplete investigation of someone where the
evidence would exonerate them before that exoneration has been
established. And that is why, either way we see it, the gentlewoman's
amendment is bad news and should be rejected.
Ms. LEE. Mr. Chairman, I rise in strong support of the Waters'
Amendment and in strong opposition to H.R. 3199, the USA PATRIOT and
Intelligence Reform Act of 2005.
``National security letters'' subpoena personal records including
telephone, internet, financial and consumer documents, but almost all
records are included in this category.
The Waters' Amendment protects the rights of those individuals who
are mentally incompetent, under undue stress, at risk for bodily harm
or losing their employment from being forced to disclose information.
It is an honest attempt to reinstate some balance to protect those
who are among the most vulnerable under this legislation.
But the underlying bill, Mr. Chairman, like the original PATRIOT Act,
continues to trample on civil liberties. But this bill goes further. It
makes fourteen of the most egregious components of the PATRIOT Act
permanent. This is outrageous.
This bill damages fundamental freedoms:
by invading medical privacy
by allowing the FBI to search in any location showing minimal
justification
by allowing for sneak and peak, national security letters, and roving
``John Doe'' wire tap provisions
by forcing libraries to police their patrons (an act that this body
just voted to overturn I might add)
and by stripping Congress of the right to review and amend these
provisions.
These all are examples that blatantly undermine our constitution and
do nothing to make us safer.
Mr. Chairman, all of us understand the need to balance civil
liberties with national security. And we can do this without
sacrificing one for the other.
Mr. Chairman, simply said, this bill is absolutely overreaching. The
Waters amendment protects the rights of those who are the overlooked
victims of national security letters--upholding the constitution is
patriotic, even in times of national security crises.
Mr. SMITH of Texas. Mr. Chairman, we should oppose this amendment.
First, we are revisiting an issue that we just covered in the Flake/
Delahunt/Otter/Nadler amendment--protections for recipients of a
National Security Letter, which is an administrative subpoena used in
terrorism investigations or in covert Intelligence activities. They are
a necessary and critical tool in our fight against terrorism.
Current laws prohibit the recipient of a National Security Letter
from disclosing the fact that they received it. This amendment creates
a safe haven for individuals who tell others that they received a
National Security Letter, by prohibiting them from being punished for
violating the order not to tell.
Non-disclosure orders prevent others being investigated for
involvement in terrorist activities from being alerted to that
investigation. If a person knows he is being investigated, he may
destroy evidence, tell others with whom he is working about the
investigation, and flee the country.
While I understand the motive behind not punishing mentally
incompetent individuals or those under duress, the law already allows
for that through the use of an affirmative defense.
Any amendment that makes it easier to tip off terrorists to the fact
that they are being investigated is irresponsible and should not be
supported. The Waters amendment should be opposed.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Hastings of Washington). The question is on
the amendment offered by the gentlewoman from California (Ms. Waters).
The amendment was rejected.
The Acting CHAIRMAN. It is now in order to consider amendment No. 7
printed in House Report No. 109-178.
Amendment No. 7 Offered by Mr. Delahunt
Mr. DELAHUNT. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 7 offered by Mr. Delahunt:
Add at the end the following:
SEC. 9. DEFINITION FOR FORFEITURE PROVISIONS UNDER SECTION
806 OF THE USA PATRIOT ACT.
Section 981(a)(1)(G) of title 18, United States Code, is
amended by striking ``section 2331'' each place it appears
and inserting ``2332b(g)(5)(B)''.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the gentleman
from Massachusetts (Mr. Delahunt) and a Member opposed each will
control 10 minutes.
The Chair recognizes the gentleman from Massachusetts (Mr. Delahunt).
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, again, this is an amendment. My cosponsors are the
gentleman from Idaho (Mr. Otter) and the gentleman from Arizona (Mr.
Flake).
But, again, let me begin by saying this is not about Cuba. So let us
make that very clear. This is about domestic terrorism and the
definition of domestic terrorism. And while it does not create a new
crime under the PATRIOT Act, the definition triggers an array of
expanded governmental authorities, including enhanced civil asset
seizure powers. It is so broadly defined that it could include acts of
civil disobedience because they may involve acts that endanger human
life, one of the elements that goes into the definition of domestic
terrorism.
For example, they could implicate anti-abortion protesters who
illegally block access to federal clinics, which could be interpreted
by a liberal activist Attorney General as endangering the lives of
those seeking abortions, or environmental protesters who trespass on
private land and climb trees to prevent logging, which could be
interpreted by a conservative activist Attorney General as endangering
their own lives or the lives of the loggers. Since such actions are
usually undertaken to influence government policy, another of the
elements that go into the definition of domestic terrorism, such
activities could be treated in such a way as to have severe unintended
consequences, particularly with regard to the government seizure of
property and/or assets.
For example, any property used to facilitate the acts, such as a
church basement, or property affording a source of influence over the
group, like a bank account of a major donor to a direct action anti-
abortion group, could be seized without any criminal conviction and
without a prior hearing notice under section 806, which is implicated
into the PATRIOT Act.
This amendment curbs those unintended consequences and possibilities
and appropriately limits the qualifying offenses for domestic terrorism
to those that constitute a Federal, substantive crime of terrorism,
instead of any Federal or State crime. It also limits the definition to
actions that are actually intended to influence government policy on a
civilian population by coercion or intimidation, instead of the current
standard that the actions ``appear to be intended'' to have that
effect.
I would conclude by reminding my colleagues on the Committee on the
Judiciary that this amendment is drawn from the version of the PATRIOT
Act that was unanimously approved by the Committee on the Judiciary in
October of 2001, and I urge its passage.
Mr. Chairman, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I ask unanimous consent to claim the
time in opposition, even though I am not in opposition to the
amendment.
The Acting CHAIRMAN. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I believe that this is a good amendment and ought to be
supported. It makes important changes to the reference in the
forfeiture statute to the definition of international terrorism from
the definition of domestic terrorism.
There are various definitions of terrorism under Federal law. In
title XVIII there has been a confusion over a new definition created in
the USA PATRIOT Act for domestic terrorism. That provision is supposed
to be used for administrative procedures such as nationwide searches,
but another part of the PATRIOT Act, section 806, uses the reference
for asset forfeiture, which is more of a penalty. This has raised
[[Page H6263]]
concerns about those who exercise their first amendment rights. As a
result, groups from both sides of the political spectrum have wanted to
change the definition of domestic terrorism.
The amendment fixes the problem by changing the reference in section
806, asset forfeiture, to the definition of a Federal crime of
terrorism under section 2332b(g)(5)(B) instead, which lists specific
crimes that constitute terrorism. Thus the more general definition may
still be used for administrative purposes and the more narrow
definition for penalties and criminal prosecutions.
I believe that this is a good amendment.
Mr. Chairman, I yield such time as he may consume to the gentleman
from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Chairman, I thank the gentleman for yielding me this
time.
Let me just briefly thank the gentleman from Massachusetts for
working on this amendment. In the committee, with regard to other bills
that we have considered, one having to do with providing a death
penalty for terrorist criminals, this issue came up as well. ``Domestic
terrorism,'' is that too broad a term and how should it be applied? If
one causes injury to a Federal building by mistake, are they then
subject to these fines? And nobody really believes that the death
penalty would be imposed in that case; however, the threat of something
like that is out there, acts as a form of intimidation to people from
engaging in lawful protest. So the overly broad definition does come up
as a problem sometimes, and in this case it comes up as a problem when
it has to do with seizure of assets.
So I thank the gentleman for bringing this amendment forward. I am
glad to join him and I am glad the chairman has articulated so well the
need for this amendment.
Mr. DELAHUNT. Mr. Chairman, I yield myself such time as I may
consume.
I thank the chairman for his support, and I thank the gentleman from
Arizona in helping draft this particular amendment, and I particularly
appreciate the example that he enumerated.
Mr. Chairman, I yield back the balance of my time.
Mr. SENSENBRENNER. Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN. The question is on the amendment offered by the
gentleman from Massachusetts (Mr. Delahunt).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. DELAHUNT. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from
Massachusetts (Mr. Delahunt) will be postponed.
The Acting CHAIRMAN. It is now in order to consider amendment No. 8
printed in House Report 109-178.
Amendment No. 8 Offered by Mr. Flake
Mr. FLAKE. Mr. Chairman, I offer an amendment.
The Acting CHAIRMAN. The Clerk will designate the amendment.
The text of the amendment is as follows:
Amendment No. 8 offered by Mr. Flake:
Add at the end the following:
SEC. 17. LIMITATION ON AUTHORITY TO DELAY NOTICE.
(a) In General.--Section 3103a(b)(1) of title 18, United
States Code, is amended by inserting ``, except if the
adverse results consists only of unduly delaying a trial''
after ``2705''.
(b) Reporting Requirement.--Section 3103a of title 18,
United States Code, is amended by adding at the end the
following:
``(c) Reports.--On an annual basis, the Administrative
Office of the United States Courts shall report to the
Committees on the Judiciary of the House of Representatives
and the Senate the number of search warrants granted during
the reporting period, and the number of delayed notices
authorized during that period, indicating the adverse result
that occasioned that delay.''.
The Acting CHAIRMAN. Pursuant to House Resolution 369, the gentleman
from Arizona (Mr. Flake) and a Member opposed each will control 10
minutes.
The Chair recognizes the gentleman from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I am offering this amendment today with the gentleman
from Idaho (Mr. Otter), my fellow co-chairman of the PATRIOT Act Reform
Caucus.
This amendment addresses two important issues regarding delayed
notification of the so-called sneak-and-peek searches. The amendment
removes the clause that allows judges, when deciding whether initially
to grant a sneak-and-peek search, to allow it for the reason that it
would unduly delay a trial to notify the target of the search. This
amendment strikes ``unduly delaying a trial'' because we believe it is
too low a standard to allow for a delayed notification search under the
adverse impact clause of section 2705 of title XVIII.
{time} 1630
This amendment also requires on an annual basis that the
Administrative Office of the Courts must report to the House and Senate
Judiciary Committees on the number of search warrants granted and the
number of delayed notices authorized. The AOC would also be required to
indicate the cause of delay in each instance. This important
information will help improve Congress' oversight role on delayed
notification for so-called sneak-and-peak searches in the future by
providing Members with this information on an annual basis.
Again, I want to thank the gentleman from Wisconsin (Chairman
Sensenbrenner) and his staff for once again working to address the
concerns we had on delayed notification. I urge my colleagues to accept
this amendment.
Mr. Chairman, I yield 2 minutes to the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Chairman, I support this amendment. I do not
think that there should be a delayed notification warrant excuse for
unduly delaying a trial, but we have heard an awful lot about delayed
notification warrants here. Let me again repeat the fact that delayed
notification warrants were not created by the PATRIOT Act when it was
passed 3\1/2\ years ago. It was existing law for drug-trafficking and
racketeering investigations, and the PATRIOT Act only expanded it to
include terrorism investigations.
Mr. Chairman, I would like to give Members today a very vivid
pictorial example on how these warrants work. Using a delayed
notification search warrant, the DEA and other Federal agents entered a
home along the border between Washington State and Canada on July 2,
2005, because there was information that the first-ever tunnel under
the border between Canada and the United States has being used for drug
trafficking.
What did they find? They found a very sophisticated tunnel, and took
a picture of it. There were various camera devices and listening
devices that the agents put into this tunnel, and they ended up finding
that the tunnel had been used to transport 93 pounds of marijuana from
Canada into the United States.
This is a picture of the U.S. entrance to the tunnel on our side of
the border, very close to Canada. It probably is best described as the
U.S. exit. But on the Canadian side of the border the entrance to the
tunnel was in a building. So the contraband was stored in this
building, was put into the tunnel, taken underneath the border and
exited in the United States.
Now, the tunnel that I showed in the first picture was big enough to
smuggle terrorists across the border, should it be used for that
purpose. All this ended up being exposed as a result of a delayed
notification warrant. The amendment is a good one; so are delayed
notification warrants.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I ask unanimous consent to
claim the time in opposition, although I am not opposed to the
amendment.
The Acting CHAIRMAN (Mr. Hastings of Washington). Is there objection
to the request of the gentlewoman from Texas?
There was no objection.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield myself 4 minutes.
Mr. Chairman, let me first of all continue to remind my colleagues
and remind America that juxtaposed along this debate today is an
existing Bill of Rights that is embedded in our Constitution. It
obviously says there is the right to a trial by jury, the right to due
process, the right to association, the right to freedom of speech. So
as we have been debating through the day, I
[[Page H6264]]
appreciate the tone of my colleagues, because on both sides of the
aisle we have raised concerns about overreach and over-breadth when it
comes to denying or eliminating the rights and freedoms of Americans.
Mr. Chairman, I would have hoped that we would have had the
opportunity to debate an amendment on section 213 that would have
sunsetted it; not eliminated it, but sunsetted it.
I heard in earlier debates that none of these provisions have been
found unconstitutional by Federal courts. Let me remind the chairman
that this legislation is barely, barely, 3 years old. In fact, I would
argue that it is not sufficient time to know the extensiveness of the
over-breadth on this legislation.
Mr. Chairman, I rise to compliment the gentleman from Arizona (Mr.
Flake) and the gentleman from Idaho (Mr. Otter) for at least working to
find some limitations on a section that allows the FBI to execute a
search and seizure warrant, again in violation of one of our prime
tenets of the Constitution, the fourth amendment, without notifying the
owner for 6 months, if providing advance notice would interfere with
the investigation. How broad can that be, to suggest if it is not where
it would intrude on the investigation.
Mr. Chairman, as a local sitting judge, I spent many a night, 11, 12
o'clock at night, hearing from undercover police officers who were in
fact searching for a search warrant, one to be signed by this judge. I
listened to probable cause statements, PC statements. I would argue
vigorously that none of that took an excessive amount of time. The
probing that was allowed at that time, I believe, was a good firewall
to protect the rights, the innocent rights, of Americans.
Last night we saw on the news media a recounting of a tragic incident
that occurred with out-of-control bounty hunters, many times used by
local law enforcement. This is not exactly the same issue; but upon
going into a home or insisting that someone was someone who was not
someone, a woman who was innocent was dragged down to the courthouse or
to jail. Unfortunately, she called the police when the bounty hunter
came and the police insisted she was the right person. She was not.
That is just an example of what happens with overreach.
So this particular amendment that requires reporting on an annual
basis of the Administrative Office of the Courts to the Committees on
the Judiciary in the House and Senate gives us a limited way for
oversight, the number of search warrants during the reporting period
and the number of delayed notices authorized in the period, indicating
the adverse result that occasioned that delay, a mere bringing to the
attention of those of us who have the responsibilities of oversight as
to what is happening out there.
The difficulty with this amendment, however, is it leaves us with no
action, because section 213 does not have a sunset provision. Because
it continues to exist, we then have no way to respond as to whether or
not there is overreach.
I emphasize to my colleagues, again, that we are all in the business
of fighting terror. In the backdrop of the incidents in London 2 weeks
ago and today, we recognize we are united around that issue. But I have
never talked to any American who concedes they cannot balance their
civil liberties and freedom with the idea of fighting in a war on
terror.
I would hope simply that we would have the opportunity to debate this
further and recognize that this body has gone on record, particularly
by its work in CJS funding, where we offered not to fund section 213. I
hope my colleagues will support this amendment, but recognize the
dilemma we are in.
Mr. FLAKE. Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from
Idaho (Mr. Otter).
(Mr. OTTER asked and was given permission to revise and extend his
remarks.)
Mr. OTTER. Mr. Chairman, in my rush to get over here, I had not
realized that the chairman had already accepted this amendment, and I
thank the chairman for that. But there are a couple of thoughts that I
would like to add to the discussion that have already been provided.
Mr. Chairman, I thank my colleague, the gentleman from Arizona (Mr.
Flake), who is cochair of the PATRIOT Act Caucus with myself. I know
the gentleman from Arizona (Mr. Flake) and the chairman worked very
hard in committee to make sure that they came out with a product that
would at least not be as bad as it was when we first passed it in 2001.
I thank the gentleman from Arizona (Mr. Flake) and also the gentleman
from Wisconsin (Chairman Sensenbrenner).
Mr. Chairman, I rise in support of this amendment, and I appreciate
the opportunity to discuss this issue today as we engage in one of the
most important debates that we will have during the 109th Congress--
that is, how to ensure that neither our national security nor the
individual liberties guaranteed by our Constitution are sacrificed to
the threat of terrorism.
The amendment we are offering today narrows the scope of so-called
``sneak-and-peek'' delayed notification search warrants and reins in
the far-reaching power that we hastily gave the federal government in
the frightening and chaotic days following the 9/11 attacks. We have
often heard that ``sneak and peek'' warrants were used before the
passage of the USA PATRIOT Act, and I recognize that the courts have
upheld their use in limited and extraordinary circumstances.
However, it deeply disturbs me that in codifying this practice we did
not employ the notification procedure upheld by most courts before the
PATRIOT Act or practice due caution in an effort to protect our Fourth
Amendment rights. Instead, we took this already questionable practice
and made it the standard rather than the exception.
Our amendment today is an important step toward reinstituting those
precious checks and balances that make this a valuable tool for
protecting security instead of a threat to the liberties that are given
by our Creator, recognized by the Framers and embodied in our
Constitution.
One of my basic concerns with the way that sneak-and-peek was crafted
under the PATRIOT Act is the extraordinarily broad list of situations
in which the power can be used. Section 213 of this Act lists
circumstances, including threat to life and destruction of evidence, in
which notification of the execution of a search warrant may be delayed.
I understand that these are extreme situations which may call for
extraordinary tools. However, the last provision of this list is so
vague, so broad, and so all-encompassing that it essentially expands
the use of this tool to any investigation in which it would be easier
for law enforcement to deny suspects the Constitutional right of
notification.
Our amendment today takes one of the first steps toward rectifying
this serious flaw in the original PATRIOT Act language by eliminating
part of this ``catch-all'' provision. In addition, it includes
reporting language so that we in Congress know when delayed
notification is requested and in what circumstances it is used. Armed
with this knowledge, we will be better able to conduct proper oversight
to ensure that this tool is used to protect personal freedoms while it
advances the cause of preventing and prosecuting terrorism.
In the Fourth Amendment, the Framers endorsed the principle that it
is the government's role to protect our right to individual privacy,
not to encroach upon it. This idea of individual rights--that each
person is created uniquely and with certain inalienable rights that
government cannot take away--is the most basic expression of who we are
as a nation and a people.
That is why it is so vital that this amendment becomes law. While I
confess that I would have liked to see stronger language protecting our
Fourth Amendment rights included as part of this bill, I am pleased
that with this amendment we have the opportunity to reinstate some of
the constitutional safeguards that were compromised during passage of
the PATRIOT Act.
Such a move would strengthen rather than weaken our ability to fight
against those who wish to destroy the essence of what it means to be an
American.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield 3 minutes to the
distinguished gentleman from Oregon (Mr. Blumenauer).
Mr. BLUMENAUER. Mr. Chairman, I appreciate the gentlewoman's courtesy
in permitting me to speak on this amendment. I am pleased with the
efforts that are under way here on the floor to help try to deal with
the shape of the PATRIOT Act. This is a critical discussion.
We have been fighting the war on terror longer than we fought World
War II, and it appears to be that this is going to be in the American
landscape for as far into the future as we can see.
This amendment helps get a handle on the sneak-and-peak provisions.
Section 213, which authorizes the sneak-
[[Page H6265]]
and-peak investigation, is not restricted to terrorists or terrorism
offenses. It may be used in connection with any Federal crime,
including misdemeanors. The PATRIOT Act did not establish oversight
standards for these investigations.
The public has a right to know how these activities are being
undertaken. We saw one of these searches in Oregon go sideways and
devastate the life of a local attorney. Brandon Mayfield was jailed for
2 weeks as his name was leaked to the media, falsely linking him to the
Madrid bombing. Now this man is suing the FBI; but he will never, never
be able to clear his name.
I appreciate what my friends, the gentleman from Arizona (Mr. Flake)
and the gentleman from Idaho (Mr. Otter), have attempted to do here,
narrowing the application and providing more information to Congress.
This is critical. I would hope we would be able to push the limits a
little further. I am very apprehensive about this, but we are involved
with a process that is very important for Congress.
As I mentioned, this is what we see for as long as the eye can view.
In 2001, just days after 9/11, we rushed through a bill that simply
cast aside the important by-products that were developed by the
Committee on the Judiciary on a bipartisan basis. I am hopeful that
this is going to give us a chance to work together to deal with the
important security provisions.
Nobody wants America at risk; but it is important that we narrow
provisions, wherever possible, that we have appropriate sunset
provisions and that we are monitoring carefully. It is critical both
for the civil liberties of Americans and for developing the right tools
to fight terrorism.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I yield 1\1/2\ minutes to the
gentleman from Michigan (Mr. Conyers), the distinguished ranking member
of the Committee on the Judiciary, and thank him for his constant moral
compass on civil liberties and civil rights for the American people.
Mr. CONYERS. I thank my colleague from Texas for yielding me time.
Mr. Chairman, I would like to just point out that this is another one
of the famous half-loaf amendments that we are being peppered with this
afternoon.
The amendment leaves ``interferes with an investigation'' open, but
it does take away ``when it would delay a trial.'' We get half a loaf
here again, so I cannot oppose the amendment, because it did make some
improvement. After all, what is progress, even if it may be slow?
But at the same time, this may be a nonterrorist provision within the
PATRIOT Act, because we already have a provision for secret searches
for terrorists. So letting this section expire altogether would not
interfere with secret searches for terrorists at all.
What we found out in our examination, the staff examination, is that
90 percent of the uses of the sneak-and-peak authority have been for
nonterrorism cases. It seems to me that this amendment goes along in
that same direction.
Mr. FLAKE. Mr. Chairman, I reserve the balance of my time.
{time} 1645
Ms. JACKSON-LEE of Texas. Mr. Chairman, it is my great pleasure to
yield 1\1/2\ minutes to the gentleman from Rhode Island (Mr. Langevin),
a former attorney general of the great State of Rhode Island.
Mr. LANGEVIN. Mr. Chairman, I thank the gentlewoman for yielding me
this time.
I rise in support of the Flake-Otter sneak-and-peek amendment to drop
this provision. Keeping America safe is not a partisan issue; but,
unfortunately, several provisions of H.R. 3199 are.
Now, we could have had a bipartisan solution that extends the
provisions that are effective and modifies those that need changes.
This amendment addresses one of those changes by preventing the use of
sneak-and-peek searches when the sole purpose of the delayed
notification is to postpone a trial. The current provision is too
broad, and this amendment would limit these searches to terrorism
cases.
Now, I recognize the need for our laws to keep pace with new
technology and a changing world, and I am committed to ensuring that
our law enforcement has the tools they need to keep our Nation safe.
However, providing these tools need not come at the expense of the
liberties and freedoms that we hold so dear. If we cede these, we have
already given up the very values the terrorists are trying to destroy.
I look forward to working with my colleagues to make many changes to
H.R. 3199 to fight terrorism and to protect our freedoms. I urge the
Senate to take a more bipartisan approach to the renewal of the USA
PATRIOT Act, and I hope that they are more open to sunsets which
require Congress to review the act, extend what is working, and change
what is not. Sunsets would make the bill better, but the rule does not
permit us to vote on this important modification.
I hope my colleagues will join me in supporting this responsible
amendment.
Mr. FLAKE. Mr. Chairman, I yield myself the remaining time to
conclude briefly, simply to say that the distinguished ranking minority
member of the committee, the gentleman from Michigan (Mr. Conyers),
mentioned that the amendment represents half a loaf, and I will freely
concede that it does. Rarely do you get an amendment to a bill that
represents the full loaf.
But I should point out that in committee we considered another half-
a-loaf amendment, if you will, to section 213; and that amendment by
myself and the gentleman from New York (Mr. Nadler) clarified or, not
clarified, but actually put in some false stops with regard to delayed
notification searches where you have to appear before a judge after 80
days to justify delayed notifications. After 90-day increments beyond
that time, you have to appear again and justify that search as well.
That is the other half a loaf.
We have also had many other amendments in committee, and here on the
floor, that could be considered half a loaf. With that, I think we got
a pretty good product in the end, and that is what we are seeking to
have here.
I would urge support of the amendment.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Hastings of Washington). The question is on
the amendment offered by the gentleman from Arizona (Mr. Flake).
The question was taken; and the Acting Chairman announced that the
ayes appeared to have it.
Mr. FLAKE. Mr. Chairman, I demand a recorded vote.
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Arizona (Mr.
Flake) will be postponed.
Sequential Votes Postponed in Committee of the Whole
The Acting CHAIRMAN. Pursuant to clause 6 of rule XVIII, proceedings
will now resume on those amendments printed in part B of House Report
109-178 on which further proceedings were postponed, in the following
order: amendment No. 2 offered by Mr. Flake of Arizona; amendment No. 3
offered by Mr. Issa of California; amendment No. 4 offered by Mrs.
Capito of West Virginia; amendment No. 5 offered by Mr. Flake of
Arizona; amendment No. 7 offered by Mr. Delahunt of Massachusetts;
amendment No. 8 offered by Mr. Flake of Arizona.
The Chair will reduce to 5 minutes the time for any electronic vote
after the first vote in this series.
Amendment No. 2 Offered by Mr. Flake of Arizona
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Arizona
(Mr. Flake) on which further proceedings were postponed and on which
the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 402,
noes 26, not voting 5, as follows:
[Roll No. 403]
AYES--402
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Baird
[[Page H6266]]
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Becerra
Berkley
Berman
Berry
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonner
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Butterfield
Camp
Cannon
Cantor
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Cleaver
Clyburn
Coble
Conaway
Conyers
Cooper
Costa
Costello
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Everett
Farr
Fattah
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Grijalva
Gutierrez
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hinchey
Hobson
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Hunter
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kucinich
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lee
Levin
Lewis (GA)
Lewis (KY)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McKinney
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Mica
Michaud
Millender-McDonald
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Nadler
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Spratt
Stark
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NOES--26
Bachus
Biggert
Bonilla
Bono
Burton (IN)
Buyer
Calvert
Cole (OK)
Davis (KY)
Hoekstra
Hostettler
Johnson, Sam
Lewis (CA)
Linder
Myrick
Oxley
Price (GA)
Renzi
Rogers (MI)
Sessions
Shadegg
Souder
Thomas
Thornberry
Tiahrt
Walsh
NOT VOTING--5
Brown (SC)
Cox
Hastings (FL)
Hinojosa
Miller (FL)
Announcement by the Acting Chairman
The Acting CHAIRMAN (Mr. Hastings of Washington) (during the vote).
Members are advised that there are 2 minutes remaining in this vote.
{time} 1711
Mr. BUYER, Mrs. BONO, Messrs. HOEKSTRA, ROGERS of Michigan, LEWIS of
California, COLE, CALVERT, WALSH, SESSIONS, Mrs. MYRICK, Messrs. PRICE
of Georgia, BACHUS, OXLEY and THOMAS changed their vote from ``aye'' to
``no.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Stated for:
Mr. MILLER of Florida. Mr. Chairman, on rollcall No. 403, I was
unavoidably detained. Had I been present, I would have voted ``aye.''
Amendment No. 3 Offered by Mr. Issa
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from California
(Mr. Issa) on which further proceedings were postponed and on which the
ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 406,
noes 21, not voting 6, as follows:
[Roll No. 404]
AYES--406
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Becerra
Berkley
Berman
Berry
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonner
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Butterfield
Calvert
Camp
Cannon
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Cleaver
Clyburn
Coble
Conaway
Conyers
Cooper
Costa
Costello
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Farr
Fattah
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Grijalva
Gutierrez
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hensarling
Herger
Herseth
Higgins
Hinchey
Hobson
Hoekstra
Holden
Holt
Honda
Hooley
Hostettler
Hoyer
Hulshof
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kucinich
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McKinney
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
[[Page H6267]]
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rohrabacher
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Shadegg
Shaw
Shays
Sherman
Sherwood
Shimkus
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Spratt
Stark
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NOES--21
Bachus
Biggert
Bonilla
Bono
Buyer
Cantor
Cole (OK)
Davis (KY)
DeLay
Everett
Hefley
Hunter
Johnson, Sam
Linder
Oxley
Rogers (MI)
Shuster
Souder
Thornberry
Tiahrt
Westmoreland
NOT VOTING--6
Brown (SC)
Burton (IN)
Cox
Hastings (FL)
Hinojosa
Ros-Lehtinen
Announcement by the Acting Chairman
The Acting CHAIRMAN (Mr. Hastings of Washington) (during the vote).
Members are advised that 2 minutes remain in this vote.
{time} 1720
Mr. INGLIS of South Carolina changed his vote from ``no'' to ``aye.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Amendment No. 4 Offered by Mrs. Capito
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentlewoman from West
Virginia (Mrs. Capito) on which further proceedings were postponed and
on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 362,
noes 66, not voting 5, as follows:
[Roll No. 405]
AYES--362
Ackerman
Aderholt
Akin
Alexander
Andrews
Baca
Bachus
Baird
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Berkley
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Cantor
Capito
Capps
Cardin
Cardoza
Carnahan
Carter
Case
Castle
Chabot
Chandler
Chocola
Clyburn
Coble
Cole (OK)
Conaway
Cooper
Costa
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Everett
Fattah
Feeney
Ferguson
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hobson
Hoekstra
Holden
Hooley
Hostettler
Hoyer
Hulshof
Hunter
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Levin
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris
Meek (FL)
Melancon
Menendez
Mica
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Moore (KS)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Napolitano
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Ortiz
Osborne
Otter
Oxley
Pallone
Pascrell
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Ryan (OH)
Ryan (WI)
Ryun (KS)
Salazar
Sanchez, Loretta
Sanders
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Souder
Spratt
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Walden (OR)
Walsh
Wamp
Weiner
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Wu
Wynn
Young (AK)
Young (FL)
NOES--66
Abercrombie
Allen
Baldwin
Becerra
Blumenauer
Brown (OH)
Capuano
Carson
Clay
Cleaver
Conyers
Costello
Cummings
Davis (IL)
DeGette
Delahunt
Farr
Filner
Frank (MA)
Grijalva
Gutierrez
Hinchey
Holt
Honda
Jackson (IL)
Johnson, E. B.
Kucinich
Lee
Lewis (GA)
Markey
McCollum (MN)
McDermott
McGovern
McKinney
McNulty
Meehan
Meeks (NY)
Michaud
Mollohan
Moore (WI)
Nadler
Neal (MA)
Olver
Owens
Pastor
Paul
Payne
Rangel
Rush
Sabo
Sanchez, Linda T.
Schakowsky
Scott (VA)
Serrano
Slaughter
Stark
Tierney
Towns
Velazquez
Visclosky
Wasserman Schultz
Waters
Watson
Watt
Waxman
Woolsey
NOT VOTING--5
Brown (SC)
Cox
Hastings (FL)
Hinojosa
Saxton
Announcement by the Acting Chairman
The Acting CHAIRMAN (during the vote). Members are advised that 2
minutes remain in this vote.
{time} 1729
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Amendment No. 5 Offered by Mr. Flake
The Acting CHAIRMAN (Mr. Hastings of Washington). The pending
business is the demand for a recorded vote on the amendment offered by
the gentleman from Arizona (Mr. Flake) on which further proceedings
were postponed and on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 394,
noes 32, not voting 7, as follows:
[[Page H6268]]
[Roll No. 406]
AYES--394
Abercrombie
Ackerman
Akin
Alexander
Allen
Andrews
Baca
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Bass
Bean
Beauprez
Becerra
Berkley
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonilla
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Cleaver
Clyburn
Coble
Cole (OK)
Conaway
Cooper
Costa
Costello
Cramer
Crenshaw
Crowley
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Farr
Fattah
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Frank (MA)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Grijalva
Gutierrez
Gutknecht
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hinchey
Hobson
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kucinich
Kuhl (NY)
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Levin
Lewis (GA)
Lewis (KY)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rogers (KY)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Spratt
Stark
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NOES--32
Aderholt
Bachus
Barton (TX)
Bonner
Bono
Cantor
Conyers
Cubin
Everett
Franks (AZ)
Hall
Hostettler
Hunter
Hyde
Johnson, Sam
Kilpatrick (MI)
LaHood
Lee
Lewis (CA)
Linder
McKinney
Oxley
Rogers (AL)
Rogers (MI)
Ryun (KS)
Sessions
Shadegg
Souder
Thornberry
Tiahrt
Westmoreland
Whitfield
NOT VOTING--7
Brown (SC)
Cox
Hastings (FL)
Hinojosa
Johnson (CT)
Mica
Taylor (NC)
Announcement by the Acting Chairman
The Acting CHAIRMAN (during the vote). Members are advised there are
2 minutes remaining in this vote.
{time} 1736
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Amendment No. 7 Offered by Mr. Delahunt
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from
Massachusetts (Mr. Delahunt) on which further proceedings were
postponed and on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 418,
noes 7, not voting 8, as follows:
[Roll No. 407]
AYES--418
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Bachus
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Becerra
Berkley
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Bonilla
Bonner
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Cleaver
Clyburn
Coble
Cole (OK)
Conaway
Conyers
Cooper
Costa
Costello
Cramer
Crenshaw
Crowley
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (KY)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Everett
Farr
Fattah
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Grijalva
Gutierrez
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayworth
Hefley
Hensarling
Herger
Herseth
Higgins
Hinchey
Hobson
Holden
Holt
Honda
Hooley
Hostettler
Hoyer
Hulshof
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kucinich
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McKinney
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
[[Page H6269]]
Ortiz
Osborne
Otter
Owens
Oxley
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Renzi
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Sessions
Shadegg
Shaw
Shays
Sherman
Sherwood
Shimkus
Shuster
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Souder
Spratt
Stark
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NOES--7
Bono
Cantor
Cubin
Hayes
Hunter
Rogers (MI)
Saxton
NOT VOTING--8
Boehner
Brown (SC)
Brown, Corrine
Cox
Gohmert
Hastings (FL)
Hinojosa
Hoekstra
Announcement by the Acting Chairman
The Acting CHAIRMAN (during the vote). Members are advised there are
2 minutes remaining in this vote.
{time} 1743
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Amendment No. 8 Offered by Mr. Flake
The Acting CHAIRMAN. The pending business is the demand for a
recorded vote on the amendment offered by the gentleman from Arizona
(Mr. Flake) on which further proceedings were postponed and on which
the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIRMAN. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 407,
noes 21, not voting 5, as follows:
[Roll No. 408]
AYES--407
Abercrombie
Ackerman
Aderholt
Akin
Alexander
Allen
Andrews
Baca
Bachus
Baird
Baker
Baldwin
Barrett (SC)
Barrow
Bartlett (MD)
Bass
Bean
Beauprez
Becerra
Berkley
Berman
Berry
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blumenauer
Blunt
Boehlert
Boehner
Bonner
Boozman
Boren
Boswell
Boucher
Boustany
Boyd
Bradley (NH)
Brady (PA)
Brady (TX)
Brown (OH)
Brown, Corrine
Brown-Waite, Ginny
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp
Cannon
Capito
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Carter
Case
Castle
Chabot
Chandler
Chocola
Clay
Cleaver
Clyburn
Coble
Conaway
Conyers
Cooper
Costa
Costello
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Cummings
Cunningham
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
Davis (TN)
Davis, Jo Ann
Davis, Tom
Deal (GA)
DeFazio
DeGette
Delahunt
DeLauro
DeLay
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Dingell
Doggett
Doolittle
Doyle
Drake
Dreier
Duncan
Edwards
Ehlers
Emanuel
Emerson
Engel
English (PA)
Eshoo
Etheridge
Evans
Everett
Farr
Fattah
Feeney
Ferguson
Filner
Fitzpatrick (PA)
Flake
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Frank (MA)
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gonzalez
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Green, Al
Green, Gene
Grijalva
Gutierrez
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hefley
Hensarling
Herger
Herseth
Higgins
Hinchey
Hobson
Hoekstra
Holden
Holt
Honda
Hooley
Hoyer
Hulshof
Hyde
Inglis (SC)
Inslee
Israel
Issa
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Jenkins
Jindal
Johnson (CT)
Johnson (IL)
Johnson, E. B.
Johnson, Sam
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Keller
Kelly
Kennedy (MN)
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
King (IA)
King (NY)
Kingston
Kirk
Kline
Kolbe
Kucinich
Kuhl (NY)
LaHood
Langevin
Lantos
Larsen (WA)
Larson (CT)
Latham
LaTourette
Leach
Lee
Levin
Lewis (CA)
Lewis (GA)
Lewis (KY)
Lipinski
LoBiondo
Lofgren, Zoe
Lowey
Lucas
Lungren, Daniel E.
Lynch
Mack
Maloney
Manzullo
Marchant
Markey
Marshall
Matheson
Matsui
McCarthy
McCaul (TX)
McCollum (MN)
McCotter
McCrery
McDermott
McGovern
McHenry
McHugh
McIntyre
McKeon
McKinney
McMorris
McNulty
Meehan
Meek (FL)
Meeks (NY)
Melancon
Menendez
Mica
Michaud
Millender-McDonald
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murphy
Murtha
Musgrave
Myrick
Nadler
Napolitano
Neal (MA)
Neugebauer
Ney
Northup
Norwood
Nunes
Nussle
Oberstar
Obey
Olver
Ortiz
Osborne
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pearce
Pelosi
Pence
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Pomeroy
Porter
Price (GA)
Price (NC)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Rangel
Regula
Rehberg
Reichert
Reyes
Reynolds
Rogers (AL)
Rogers (KY)
Rohrabacher
Ros-Lehtinen
Ross
Rothman
Roybal-Allard
Royce
Ruppersberger
Rush
Ryan (OH)
Ryan (WI)
Ryun (KS)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Saxton
Schakowsky
Schiff
Schwartz (PA)
Schwarz (MI)
Scott (GA)
Scott (VA)
Sensenbrenner
Serrano
Shaw
Shays
Sherman
Sherwood
Shimkus
Simmons
Simpson
Skelton
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Sodrel
Solis
Spratt
Stark
Stearns
Strickland
Stupak
Sullivan
Sweeney
Tancredo
Tanner
Tauscher
Taylor (MS)
Taylor (NC)
Terry
Thomas
Thompson (CA)
Thompson (MS)
Tiberi
Tierney
Towns
Turner
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Walden (OR)
Walsh
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Weldon (FL)
Weldon (PA)
Weller
Wexler
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Woolsey
Wu
Wynn
Young (AK)
Young (FL)
NOES--21
Barton (TX)
Bonilla
Bono
Cantor
Cole (OK)
Davis (KY)
Hayworth
Hostettler
Hunter
Knollenberg
Linder
Oxley
Renzi
Rogers (MI)
Sessions
Shadegg
Shuster
Souder
Thornberry
Tiahrt
Westmoreland
NOT VOTING--5
Brown (SC)
Cox
Gohmert
Hastings (FL)
Hinojosa
Announcement by the Acting Chairman
The Acting CHAIRMAN (Mr. Hastings of Washington) (during the vote).
Members are advised 2 minutes remain in this vote.
{time} 1750
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I move that the
Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Putnam) having assumed the chair, Mr. Hastings of Washington, Acting
Chairman of the Committee of the Whole House on the State of the Union,
reported that that Committee, having had under consideration the bill
(H.R. 3199) to extend and modify authorities needed to combat
terrorism, and for other purposes, had come to no resolution thereon.
____________________