[Congressional Record Volume 151, Number 101 (Friday, July 22, 2005)]
[Extensions of Remarks]
[Pages E1578-E1579]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005

                                 ______
                                 

                               speech of

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                        Thursday, July 21, 2005

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 3199) to 
     extend and modify authorities needed to combat terrorism, and 
     for other purposes:

  Mr. UDALL of Colorado. Mr. Chairman, four years ago I voted against 
the bill that became the ``USA PATRIOT Act,'' more commonly called 
simply the ``PATRIOT Act.''
  I agreed that our law-enforcement agencies needed increased power and 
more tools to fight terrorists. But I also thought then--and still 
think today--it was imperative for Congress to proceed carefully in 
order to protect Americans' civil liberties.
  I take very seriously my duty to preserve and protect our 
Constitution. For me, this is a matter of conscience--and four years 
ago I concluded that I could not fulfill my duty and also vote for the 
legislation.
  However, I took some comfort from the fact that a number of the most 
troublesome provisions of the new law were temporary and would expire 
unless Congress acted to renew them.
  And the imminent expiration of those provisions is the reason this 
bill is before us today.
  I think the value of such ``sunset'' provisions is shown by the 
debate we are having today. It is evidence that requiring Congressional 
action to renew agencies' authorities can and does result in ongoing 
Congressional oversight and periodic reconsideration.
  Unfortunately, the bill before us today does not fully follow the 
good example of our procedure 4 years ago. Instead, the bill would make 
permanent no fewer than 14 of the 16 provisions of the original 
``PATRIOT Act'' that were covered by the law's ``sunset'' clause--as 
well as other new authorities provided by last year's bill to reform 
the intelligence community--and under the bill the other two will not 
``sunset'' for a full 10 years.
  That is one of the main reasons I will vote against this bill. But it 
is not the only reason.
  Neither the expiring provisions nor the other sections of the 
``PATRIOT Act'' are limited to cases involving terrorism. This makes 
even more troubling their potential for abuse or misuse in ways that 
intrude on Americans' privacy and civil liberties.
  Because of that potential, over the last four years more than 300 
communities and seven States, including Colorado--governments 
representing over 62 million people--have passed resolutions opposing 
parts of the ``PATRIOT Act.''
  Much of that public concern--a concern I share--has focused on the 
possible effects on the privacy of patrons and customers from the 
application of section 215 of the ``PATRIOT Act'' to libraries and 
bookstores.
  Section 215 expanded the FBI's ability to obtain ``any tangible 
thing'' under the Foreign Intelligence Surveillance Act. Previously, 
the government could obtain records only from hotels/motels, storage 
facilities and car rental companies, and only if the records pertained 
to agents of a foreign power.' Now, it can seek ``any tangible thing'' 
from anyone at all as long as the information is relevant to an 
investigation.

  Many of us think this is so broad that the government could 
investigate consumers' reading and Internet habits and private records 
(such as credit card information, medical records, and employment 
histories), without the requirement of relevance to any criminal 
activity that applies in grand jury investigations.
  I would like to think that this authority will not be abused. But we 
cannot be sure that will never occur, and I think there are reasons to 
worry.
  I understand, for example, that the American Library Association has 
confirmed that

[[Page E1579]]

Federal agents went into a library and asked for a list of everyone who 
checked out a book on Osama bin Laden--which likely would include 
people who wanted to learn about his connection to the terrorist 
attacks on New York and Washington--and that overall, since those 
attacks libraries have received more than 200 formal and informal 
requests for materials, including 49 requests from federal officers.
  It is not clear what authority (if any) was cited by the federal 
officers for obtaining this information--and, because recipients of 
orders issued under section 215 not only have no effective way of 
challenging them but in fact are prohibited from disclosing to anyone 
but their attorneys that they received such an order, there is no way 
of knowing how often this authority has been used.
  So, I remain concerned about the possibility that the ``PATRIOT Act'' 
would be used to obtain very private information--whether library 
records, medical information, or gun purchase records--without an 
adequate showing of a connection to terrorism.
  It is true that this bill would make some worthwhile changes to 
current law, including allowing the recipient of a Section 215 order to 
challenge it before a three-judge panel of the Foreign Intelligence 
Surveillance Court, FISC, in Washington, DC, and assert that the law 
was wrongly applied.
  But I think we ought to have at least had the opportunity to debate 
more substantial reform to this part of the law.
  To begin with, we should have been able to at least consider a 
limited exemption for bookstores and libraries, along the lines of the 
bipartisan amendment that the House voted to add to the Justice 
Department appropriations bill for fiscal 2006. However, the Republican 
leadership blocked that amendment from even being offered.
  Further, I think consideration should be given to changing the 
standard for issuing a section 215 order, to require some individual 
suspicion that the records the government wants are related to a spy, 
terrorist or other foreign agent--which could include the records of 
other parties if they were clearly relevant to the activities of the 
subject under investigation. Again, no amendment along those lines was 
allowed consideration.
  It is true that the House did have the opportunity to consider a 
number of worthwhile amendments. I was glad to have the chance to vote 
for them, and am glad that so many were adopted. However, we should 
have had the chance to consider many more.
  For example, the House ought to have had the chance to at least 
debate changes such as some proposed in the Intelligence and Judiciary 
Committees. I have in mind the amendment to ``sunset'' the so-called 
``lone wolf' provision, approved by the Intelligence Committee and an 
amendment offered in the Judiciary Committee to restore a requirement 
for reporting on the disclosure of electronic communications that was 
included in the bill approved by the Judiciary Committee in 2001 but 
later stripped by the Rules Committee without explanation.
  Unfortunately, the Republican leadership did not allow any of these 
amendments to even be debated on the House floor, although it did allow 
time for a new amendment--not considered in committee, as far as I can 
tell--that would, among other things, change the rules for jury trials 
in many federal criminal trials, evidently including some not related 
to terrorism.
  And so, Mr. Chairman, my reaction to the bill now before the House is 
similar to the one I had to the original ``Patriot Act'' legislation 
four years ago.
  As I did then, I strongly support combating terrorism, here at home 
as well as abroad.
  But I continue to think that it is essential that we remember and 
respect the Constitutional rights of law-abiding Americans as we wage 
war against those who would destroy both our Constitution and our 
country. In fact, I think that if we don't do that we will lose much of 
what we are seeking to defend.
  And, now as then, I have concluded that for the reasons I have 
mentioned this bill as it stands--especially after rejection of the 
proposal to shorten the extension of expiring provisions--does not 
strike the right balance, and should not become law in its present 
form.
  But, now as four years ago, I am hopeful that the bill will be 
further improved as the legislative process continues.
  Four years ago, that did not happen. However, I think there is good 
reason to think that this time history will not repeat itself.
  There evidently is considerable support in the other body--by 
Senators on both sides of the aisle--for provisions that would improve 
on this legislation. I hope and expect that the Senate will make such 
improvements and that in the end the result will be a measure that 
deserves the support of all Members of Congress.

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