[Congressional Record Volume 151, Number 163 (Saturday, December 17, 2005)]
[Extensions of Remarks]
[Page E2572]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTRODUCTORY STATEMENT TO ACCOMPANY THE NATIONAL SECURITY LETTER AND 
                      CONGRESSIONAL OVERSIGHT ACT

                                 ______
                                 

                            HON. JANE HARMAN

                             of california

                    in the house of representatives

                       Friday, December 16, 2005

  Ms. HARMAN. Mr. Speaker, two days ago, the House passed the 
conference report to H.R. 3199 reauthorizing certain expiring 
provisions of the USA PATRIOT Act.
  The final bill failed to include adequate safeguards on national 
security letters, NSLs, which are requests for personal data and 
records issued directly by Government agencies without the approval of 
a judge.
  NSLs have existed since the 1970s, but their use--primarily by the 
FBI--greatly expanded after 9/11. Using NSL authorities, the Government 
has collected and maintained data on thousands of Americans.
  NSLs are important investigative tools, but their use has grown 
rapidly--and without adequate oversight.
  NSLs may be issued by the FBI without asking a judge for a warrant. 
In this way, they differ from orders under the Foreign Intelligence 
Surveillance Act, FISA, for business records under section 215 of the 
PATRIOT Act, the so-called library provision. Section 215 orders must 
be approved by a Federal judge.
  NSLs have been characterized as ``back doors'' for obtaining library 
and other records that may not be available under FISA. If 215 orders 
can be called ``fishing licenses,'' then NSLs allow fishing without a 
license.
  Defenders of NSLs liken them to grand jury subpoenas. However, they 
are different in important respects. First, grand jury subpoenas may 
only be issued by a U.S. Attorney as officer of the court. NSLs may be 
issued by an FBI agent in the field without any review by a jury or 
court. Second, grand jury subpoenas may only be issued after suspicion 
that a Federal crime has occurred; for NSLs, the standard is much 
lower--requiring only that the information sought is ``relevant'' to a 
national security investigation.
  Congressional oversight of NSLs is almost nonexistent. Congress 
receives a classified one-page summary listing aggregate numbers of 
NSLs at least 6 months after they are issued. These reports are 
essentially meaningless and are the only oversight Congress at present 
exercises.
  Clearly, there is a need to reform NSL standards and processes. This 
bill addresses this need by incorporating checks and balances on the 
front-end and back-end of the process.
  On the front-end, the bill: Restores the pre-Patriot Act standard for 
issuing NSLs: the government must show a specific connection to a 
terrorist or foreign power before an NSL could be issued; requires 
approval of each NSL by a FISA Court or designated federal magistrate 
judge; requires the FISA Court to set up an electronic system for 
filing NSL applications, so that requests are expedited and 
investigations will not be slowed down.
  On the back-end, the legislation: Provides a Sense of Congress that, 
in cases where an NSL recipient challenges the ``gag''/non-disclosure 
requirement, the government's certification that harm to national 
security will occur shall be treated as a ``rebuttable'' presumption, 
not as ``conclusive'' evidence that harm would occur; requires 
minimization procedures to ensure destruction of information obtained 
through NSL requests that is no longer needed; and requires detailed 
semi-annual reports to the Congressional Intelligence and Judiciary 
Committees on all NSLs issued, minimization procedures, court 
challenges, and how NSLs aided investigations and prosecutions.
  We must arm our investigators with the tools to catch terrorists, 
spies and others who threaten our national security. But, we must do so 
in a manner that protects the cherished liberty and privacy 
expectations of U.S. citizens.
  This legislation will not hobble the investigative process nor hamper 
our pursuit of the terrorists. It will impose much-needed 
accountability and oversight.

                          ____________________