[Congressional Record Volume 157, Number 21 (Thursday, February 10, 2011)]
[House]
[Pages H621-H631]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 514, EXTENDING COUNTERTERRORISM
AUTHORITIES
Mr. DREIER. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 79 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 79
Resolved, That upon the adoption of this resolution it
shall be in order to consider in the House the bill (H.R.
514) to extend expiring provisions of the USA PATRIOT
Improvement and Reauthorization Act of 2005 and Intelligence
Reform and Terrorism Prevention Act of 2004 relating to
access to business records, individual terrorists as agents
of foreign powers, and roving wiretaps until December 8,
2011. All points of order against consideration of the bill
are waived. The bill shall be considered as read. All points
of order against provisions in the bill are waived. The
previous question shall be considered as ordered on the bill
to final passage without intervening motion except: (1) one
hour of debate, with 40 minutes equally divided and
controlled by the chair and ranking minority member of the
Committee on the Judiciary and 20 minutes equally divided and
controlled by the chair and ranking minority member of the
Permanent Select Committee on Intelligence; and (2) one
motion to recommit.
The SPEAKER pro tempore. The gentleman from California is recognized
for 1 hour.
Mr. DREIER. Mr. Speaker, I am happy to yield the customary 30 minutes
to my good friend and Rules Committee colleague, the gentleman from
Boulder (Mr. Polis), pending which I yield myself such time as I may
consume.
(Mr. DREIER asked and was given permission to revise and extend his
remarks.)
Mr. DREIER. Mr. Speaker, 18 days from now, three key provisions of
the Patriot Act are set to expire, leaving a gap in our national
security framework. Today's underlying legislation would temporarily--
and I underscore the word, Mr. Speaker--temporarily extend these
provisions to allow for the development of a long-term solution, with
the many questions that are out there.
{time} 1340
With strong bipartisan support, the previous Congress simply passed a
blanket 1-year extension without addressing any of the underlying
challenges, questions and controversies. I am the first to admit that
there are challenges, questions and controversies that relate to the
Patriot Act. Unfortunately--and again, it was by a vote of 315-97 on
February 25 of last year, Mr. Speaker--we went through that entire
year. But guess what. Not a single hearing was conducted subsequent to
the passage of that extension. Not a single hearing over the past year
has been held.
I feel very confident that my colleagues who have joined me on the
floor here from the Judiciary Committee--Mr. Lungren, who is here right
now, Mr. Sensenbrenner, who chairs the Crime Subcommittee, and Mr.
Gohmert--I mean, these gentlemen and I have just had a conversation,
Mr. Speaker, in which they have made an absolute commitment that this
Congress will not make the mistake that was made over the past year.
Following this short-term extension, we will have a thorough oversight
process in which the committees of jurisdiction will take a very close
look at how we pursue the terrorists who threaten our homeland.
Now, everybody acknowledges that this is not only controversial, not
only filled with questions and not only filled with challenges, but
that it is very, very complicated. The individuals and networks who
seek to do harm to Americans change and adapt every single day. Mr.
Lungren and I were just having a conversation in which we were looking
at the situation that existed a decade ago, right after September 11.
The threat is much different today than it was 10 years ago, and that's
why we need to recognize that they are constantly changing and adapting
their tactics to try and undo the United States of America and the free
world. Staying one step ahead requires a tremendous amount of
flexibility, ingenuity, coordination, and of course the right law
enforcement tools.
Just today, Secretary of Homeland Security Janet Napolitano said that
the threat that exists today--and Mr. Gohmert just showed it to me on
his iPad; it's on the front of one of the
[[Page H622]]
newspapers around here--is as great as it has been since September 11.
Then when I said it to Mr. Lungren, he reminded me that it's a
different threat, a different threat today than the one that we faced
in the past. That's why flexibility, ingenuity, and coordination are
absolutely essential if we are going to proceed.
We need to ensure that we are taking all necessary steps while fully
protecting the rights of all Americans. I want to underscore that this
is one of the reasons that, going back 10 years, as we were legislating
through the prism of September 11, I was very insistent that we have
the ability to have oversight and to look and make sure that we are not
undermining the rights of the American people. We need to ensure that
that is a priority as we proceed.
This process is going to be a lengthy process over the next 10
months. It is not a process that can be resolved in the 7 legislative
days that exist between now and February 28 when this is scheduled to
expire. In the immediate term, it is imperative that we temporarily
extend the expiring provisions to ensure that we do not suddenly create
glaring loopholes in our national security. It is imperative that we
commit to a comprehensive and, yes, transparent process. I had a
conversation downstairs with my California colleague, Mr. Rohrabacher.
All the way to when this measure comes to the floor, we want to ensure
that we have an open and transparent process when it comes to changes/
modifications to the Patriot Act, and we want amendments to be
considered. We want there to be a free-flowing debate as we proceed.
Mr. Speaker, the last piece of legislation, the resolution that we
were just discussing, has to do with job creation and economic growth
because we want to unleash the potential of American workers by freeing
them from the onerous regulations that have been imposed on them. Some
might ask, Is this in fact a jobs bill? Well, I think about what
happened to our Nation's economy following September 11 of 2001. We all
know the devastation that took place. The New York Stock Exchange had
to close down for a week. We saw tremendous disruptions in our economy
and the job force.
This measure is designed to ensure our national security. Without
national security, we won't have the potential to save and create jobs
in this country. So as we are enjoying economic recovery today, I see
this measure as being critical to our quest for sustained job creation
and economic growth, and believe that they are so inextricably tied
that it is essential that we put this extension in place so that, over
the next 10 months, nothing will be done to undermine the security and
the safety of our fellow Americans.
The five most important words in the middle of the Preamble of the
Constitution, Mr. Speaker, are ``provide for the common defense.''
That is what priority number one is.
Mr. Lungren and I were talking about this yesterday morning at the
Republican Conference. It is absolutely essential that we recognize
that as our number one priority because providing for the common
defense and ensuring our security ensures that our economic security
with the potential for job creation will be able to be sustained.
Mr. Speaker, I urge my colleagues in a bipartisan way--since we had a
vote of 315-97 on February 25 of last year and with, again, strong
bipartisan support from many, many, many Democrats who, unfortunately,
chose to vote ``no'' when we had this under suspension of the rules,
now we are considering it under a process. This is bipartisan, by the
way. When a measure is not successful under suspension of the rules,
Democrats and Republicans alike bring measures to the floor under this
process that we are considering this measure today.
So I urge my colleagues to support this so that we can proceed with
the very important work that Messrs. Sensenbrenner, Lungren, Gohmert,
and others will be pursuing.
I reserve the balance of my time.
Mr. POLIS. Mr. Speaker, the Patriot Act is a bill that has been
plagued with abuse since it was first passed, and today's rule is yet
another example of short-circuiting the system that our Founding
Fathers set up. If there were ever the need for the close supervision
and congressional oversight of a law, it is a law that discusses how
and under what conditions a government can spy on its own citizens.
After 10 years of public record, we all agree there are some clear
sections of the law that can be improved; but instead of debating these
sections of the law to better find that balance between protecting what
makes it special to be Americans and protecting our national security,
the Republican leadership has decided to ram through this bill with as
little debate as possible.
Mr. Speaker, we spent an hour earlier discussing how we will spend
9\1/2\ hours discussing the organizational aspects of the House
committee structure. Yet, for something that cuts to our core identity
as Americans, we only have an hour under the rule and an hour under the
bill to discuss it in its entirety.
This bill would reauthorize three of the most troubling provisions in
the Patriot Act. Again, instead of actually debating the merits of
these provisions and coming up with solutions that both sides can agree
on to protect what it means to be an American, the Republican
leadership has attempted first to force it through under the suspension
calendar and now under a closed rule, the most restrictive kind of
rule.
In spite of their plethora of promises to change the culture of
Congress, this bill looks like it's being done under old business. On
such an important issue, one that affects our national security and the
civil liberties of every American, one that goes right to the heart of
what it means to be an American and to our identity as citizens of this
great Republic, the Republican majority has reverted to short-
circuiting the system and closing down discussion.
Just yesterday, they held the vote open for more than half an hour,
pressuring Members to switch votes. Thankfully, the effort failed to
muster the majority, and that's why we are here before you today with
an additional hour to discuss the Patriot Act, which is woefully
insufficient; but I think the American people can be grateful that
Members on both sides of the aisle stood up and said at least let's
have more discussion about this. Only after failing to jam through the
bill as a suspension bill did the Republican leadership bring it up
under a rule.
The Judiciary Committee, which the Republicans argue has not had time
to look at this or to consider this under the normal process, has
actually already had several hearings in the past few weeks on other
topics. Apparently, the topic of abortion was important enough on which
to have a discussion by the Judiciary Committee but not the topic of
the security of the American people and our civil rights as Americans.
{time} 1350
So why can't the Judiciary Committee find the time to even hold a
hearing to discuss an issue this important that cuts the very
definition of what it means to be American? Even if a little more time
is needed, a month, 2 months, why isn't there a 30-day extension, a 60-
day extension before us instead of a 10-month extension? It should not
be used as an excuse to prevent all proceedings from moving forward.
Mr. DREIER. Will the gentleman yield?
Mr. POLIS. I yield to the gentleman from California.
Mr. DREIER. I thank my friend for yielding.
I will explain why it is that we have more than a 30-day extension.
As I said, with the controversies, the challenge and the absolute
humongous task that is faced, we know that the legislative process
takes a while, and to have that 10 months' extension is essential for
them to do their work.
Mr. POLIS. Reclaiming my time, I think there would be broader
agreement perhaps if there was a 60-day extension and then perhaps a
need for another 60-day extension if there was no legislative business
completed, but putting it off 10 months or a year can actually give an
excuse not to bring to the forefront these very important issues that
need to be dealt with.
This body can produce results. The single most significant bill was
H.R. 2, the repeal of an entire body of health care law, and somehow
there was the ability to bring that to the floor within days of the
opening of the new Congress.
You know, both parties want to ensure that the government has the
tools
[[Page H623]]
we need to fight terrorism. We can all agree that the Patriot Act has
issues that need to be resolved. If we can move this bill through the
regular order, I'm confident that the Judiciary Committee can make
improvements that they've already discussed in prior session. In fact,
just last year, the Judiciary Committee reported out by voice vote
reform measures that would improve the Patriot Act and add real
oversight.
It's clear that there is bipartisan support to improve this bill.
Even as we speak, the Senate is debating three different versions of
the reauthorization bill, and yet here in the House, we have only this
one, originally scheduled with hardly any debate and now with a very
closed structure and no ability for Members of either party to offer
amendments.
Apart from its procedural flaws, the reauthorization fails to provide
the administration the tools and support it truly needs. The
administration, which does support reauthorizing the Patriot Act, has
repeatedly asked for a real reauthorization rather than the short-term
extensions that increase the uncertainty surrounding long-term
planning, intelligence, and law enforcement as they carry out this
mission. Instead of a patch that will get us through another few months
at the expense of the civil liberties of the American people, we need
the opportunity to truly work together to fix this bill.
Specifically, this bill would reauthorize three provisions: section
215, 206, and 6001 of the Intelligence Reform and Terrorism Prevention
Act.
Section 215 allows the government to capture any tangible thing that
might be relevant to terrorist investigations. This includes your
medical records, your diary, even what books you've checked out of the
library and what Web sites you visited. In the past, these orders were
limited to narrow classes of business and records, but the specific
facts pertain to any agent of a foreign power, and the Patriot Act has
swept away these basic requirements. In fact, it was reported by a
bookstore that the information regarding everybody who purchased
biographical books about Osama bin Laden had been requested.
The justification used for this provision is that the government
needs to have the ability to protect our national security, and yet
this goes against the basic constitutional notions of search and
seizure. We ought to seriously consider making changes to this section
instead of blindly giving the government the ability to spy on its
citizens.
Let me just give a few examples--and I think this will come as some
surprise to many people--of the transgressions that have already
occurred, the affronts to our civil liberties and freedoms as Americans
that have already occurred under the Patriot Act.
Perhaps some of us have taken Christmas vacations to Las Vegas. Well,
there is a list of 300,000 people that visited Las Vegas in Christmas
of 2003 that according to an article in the Las Vegas Review Journal
said the casino operators said they turned over the names and other
guest information on an estimated 270,000 visitors. Now, I think a lot
of people don't expect that to happen when they visit Las Vegas.
There needs to be an oversight process in place to ensure that, when
extreme measures are necessary that interfere with our privacy, it goes
through the right channels. This particular incident, even the FBI
conceded that the personal records had not borne out a particular
threat.
The Patriot Act has been used more than 150 times to secretly search
individuals' homes, and 90 percent of those cases have had nothing to
do with terrorism.
The Patriot Act was used against Brandon Mayfield, a Muslim American,
innocent of any crime, to tap his phones, seize his property, copy his
computer files, spy on his children, take his DNA, all without his
knowledge, Mr. Speaker.
It's been used to coerce an Internet service provider to divulge
information about Web surfing and Internet activity and then gagged
that provider, preventing them from even saying that their information
had been compromised.
It's been used to charge, obtain, and prosecute a Muslim student in
Idaho for posting Internet Web site links to materials that were found
objectionable by some, even though those same links were available on a
U.S. Government Web site.
Mr. Speaker, part of what makes America special is the balance
between our civil liberties and our rights as Americans and our
national security. When so many Members of Congress, so many Americans
on both sides of the aisle, of all ideologies, feel that we can do
better, I think we owe it to the people of this country to do better
and have a better process as a Congress, to improve the Patriot Act to
help protect our liberties and keep us safe over the long term.
I reserve the balance of my time.
Mr. DREIER. Mr. Speaker, I yield myself 30 seconds to say that I
agree with much of what my friend from Boulder has said.
I will say this. It was February 25 of last year that a 1-year
extension was provided and not a single hearing held. It is very
important that we deal with these questions that my friend has raised,
and we have them as well. They need to be addressed.
The administration has come out in strong support of this extension.
They'd like to have the extension not a 30- or 60-day; they'd like this
extension to go to December of 2013 if they had their way. That's what
the Statement of Administration Policy says.
And so, Mr. Speaker, I've got to say that I believe that we are very
much on the right track to ensure that we get those issues addressed.
I now yield 4 minutes to my friend from Menomonee Falls (Mr.
Sensenbrenner), the author of this extension and the chairman of the
Crime Subcommittee, who will be explaining in great detail the
challenges that we face.
Mr. SENSENBRENNER. Mr. Speaker, first of all, the argument that has
been advanced by my colleague from Colorado just doesn't mesh with the
facts, and maybe I can give him a little bit of historical background.
First of all, I was the chairman of the full Judiciary Committee on
September 11. When the Patriot Act was introduced, we had two hearings
and a full committee markup. The Senate didn't have that, even though
it was controlled by the Democrats, and there were long negotiations to
come up with the original Patriot Act that the President signed.
At that time, I insisted that there be a sunset provision on all of
the 16 additional provisions of the Patriot Act that expanded law
enforcement powers, and I gave the commitment as chairman of the
committee I would hold hearings on each of these 16 provisions,
subsequently increased to 17, before the sunset expired, and I did.
At that time, the testimony was very clear that there was no
controversy over making permanent 14 of the 16 provisions, and the
Patriot Act extension did that. The three provisions that were not made
permanent were the ones that were in controversy, and most of the
complaints advanced by my friend from Colorado (Mr. Polis) were on the
14 provisions, that there were no abuses that were brought out during
the 2005 hearings.
Now, let me talk about the three provisions that do expire that are
the subject of the underlying bill.
First of all, section 206, the roving wiretap authority. Law
enforcement has had this authority on organized crime and drug pushing
since 1986. The Patriot Act expanded it to include terrorism. There has
been no constitutional challenge that has been filed against section
206.
Section 6001, which was the 17th provision and the lone wolf
provision, says that someone who can be investigated under the Patriot
Act doesn't have to be a member of an identifiable group like al Qaeda
in order for the Patriot Act's provisions to come into play.
Constitutionality of that is unchallenged.
{time} 1400
Now section 215, which is the business records provision, there was a
constitutional challenge and it was withdrawn. The challenge was in the
case of Muslim Community Association v. Ashcroft which was filed in the
Eastern District of Michigan. The plaintiff in that case alleged that
section 215 violated the First, Fourth and Fifth Amendments to the
Constitution. The 2005 reauthorization of the Patriot Act amended
section 215, and as a result of
[[Page H624]]
the amendment, the plaintiffs withdrew their complaint. We had solved
those problems.
So, much of what we hear today are about issues that were made
permanent because there really wasn't an issue, or something that
involves other types of law enforcement activity other than the Patriot
Act.
This Congress, I am the chairman of the Subcommittee on Crime, and we
will have those hearings before this extension expires on December 8,
and we will give everybody a chance to thoroughly air their complaints
just like I promised and just like I delivered in 2005. And when the
record is brought up to date, I hope that the Members will confine
their debate to what is actually in the expiring provisions of the
Patriot Act rather than talking about a lot of other things, some of
which don't even involve the Patriot Act whatsoever.
Mr. POLIS. Mr. Speaker, I yield 3 minutes to the gentleman from
Georgia (Mr. Johnson), a member of the Judiciary Committee.
Mr. JOHNSON of Georgia. Mr. Speaker, I appreciate the historical
account that was just delivered by my colleague on the Judiciary
Committee, former Chairman Sensenbrenner, and I have abundant respect
and admiration for him and his motives and his desire to protect the
civil rights that we all hold dear. But I find it disturbing that today
we're going to start out on a 9\1/2\-hour debate on a meaningless,
redundant measure that simply instructs Congress and its committees to
review regulations and we could be spending that time dealing with such
a very important, serious issue such as reauthorization of this so-
called Patriot Act.
This bill is too serious, it's too important, to be reauthorized
without any hearings, no markups, no opportunity for amendments. I was
glad to be one of the true patriots to vote against this measure when
it was brought to the floor yesterday on a suspension of the rules
without due consideration by our Judiciary Committee.
There is bipartisan consensus that these provisions need some
improvement--roving wiretaps, the lone wolf provisions, especially
business records. While the threat of terrorism is real and law
enforcement must have the right tools to protect Americans, any
counterterrorism measure must have a solid constitutional footing and
respect the privacy and civil liberties of the American people.
If Congress reauthorizes these provisions with no changes, Americans
will remain subject to warrantless intrusions into their personal
affairs and a gross overreach of Federal investigative authority that
could be and has been abused. It's just not how we do things in this
country, ladies and gentlemen.
Rather than taking the time to craft reforms that will better protect
private citizens' communications and privacy from overbroad government
surveillance, the Republican Party simply wants to ram this bill
through without providing any opportunity for anybody to offer
amendments that would improve the bill.
The SPEAKER pro tempore (Mr. Kingston). The time of the gentleman has
expired.
Mr. POLIS. I yield the gentleman an additional 30 seconds.
Mr. JOHNSON of Georgia. We all acknowledge that law enforcement needs
new tools to keep up with 21st century threats, but surely it's our
responsibility in Congress to reexamine legislation that was hurried
through Congress in the wake of 9/11 to make sure it lives up to our
national ideals.
Because this bill fails to contain any checks and balances to prevent
law enforcement abuses and protect civil liberties, I must oppose the
rule and the underlying bill, and I urge my colleagues to do the same.
Mr. DREIER. Mr. Speaker, I yield myself 30 seconds to say to my good
friend from Georgia that no one is trying to ram anything through at
this point. President Obama strongly supports this extension, I would
say to my friend. He, in fact, wants it to go to December of 2013. We
had a 1-year extension that was put into place, passed here by a vote
of 315-97 on February 25, 2010.
There was a commitment then, and certainly people inferred, that we
would have hearings. There was not a single hearing held during that
entire period of time, and we've made an absolute commitment. We've
just heard from the gentleman from Wisconsin (Mr. Sensenbrenner). We
are about to hear from the gentleman from California (Mr. Lungren), the
chairman of the Cybersecurity Subcommittee, that we are going to, in
fact, have the process that my friend desires.
Mr. Speaker, I now yield 5 minutes to the gentleman from Gold River,
California (Mr. Lungren), the chairman of the Cybersecurity
Subcommittee.
Mr. DANIEL E. LUNGREN of California. I thank the chairman of the
Rules Committee for granting me this time.
I sit on this floor as the author of the sunset provision that
requires us to consider these three portions of the Patriot Act. I
offered that when we had the reauthorization of the overall bill
because I thought these were three sections that were at that time
controversial and that we ought to be required to review it. So I did
support the authorization for a year that we had last year, but I fully
expected that the Judiciary Committee would hold hearings so that
before this date we would have acted on any changes that anyone deemed
necessary.
I would say, I am not aware of any changes that are necessary, and I
have followed this ever since they put the sunset provisions in. But
nonetheless I had thought that during the last year while my friends on
the other side were in charge, we would have acted. As a matter of
fact, I believe our committee passed out a full reauthorization of the
Patriot Act, that is, the Judiciary Committee, under the leadership of
Chairman Conyers, but it was never brought to the floor for us to
consider, under any rule, open or closed.
So what we are asking for, in concert with the President of the
United States, is to extend it to the end of this year so that we can
carry out the constitutionally mandated obligation of oversight.
Chairman Sensenbrenner, chairman of the Crime Subcommittee, has a
track record. I believe it was 13 hearings that we held on these
subjects. We went through chapter and verse. We had the FBI before us.
We had the Attorney General before us. We had the head of the criminal
division before us. We had the ACLU before us. We had classified
briefings as well as public hearings. We made some changes in 2005
pursuant to requests and information that was presented to us.
Now, I know some of our members said after they voted against this on
the suspension calendar, ``Well, look this bill's been in effect for 10
years. Times have changed.'' Yes, they have. And if we would examine
the changes, we would see that these three provisions are more
necessary today than they were when we first put them into the law.
Why? Because as Secretary Napolitano, the Secretary in the Obama
administration, stated just today, we are on as high alert today, as
far as she's concerned in terms of the threat, as we have been at any
time since 9/11. And as the two cochairs of the 9/11 Commission said in
testimony last year, which is basically repeated by Secretary
Napolitano and the head of the NCTC in testimony this week, we have a
different threat today.
{time} 1410
We have the continuing threat of those of al Qaeda on the
international scene, still attempting to probe and find where they
might be able to provide a catastrophic event against the United
States. But the new facts show that the greater threat to us today is,
as they have said, less consequential attacks from smaller groups, some
not even officially allied with al Qaeda, sometimes inspired by them,
sometimes incited by them. And these three provisions go directly to
the investigations that are necessary for us to deter that.
This is not the regular criminal justice system where you examine the
evidence after the crime has been committed to try to convict the
individual. This is in the essence of deterrence, to make sure that
we're not collecting body parts after the attack has occurred. As a
result, we have tried to make changes in the law that will allow us to
do what the 9/11 Commission said we couldn't do beforehand, connect the
dots.
[[Page H625]]
Why do we have the lone wolf provision in here? Because that is more
and more the concern we have to have. Now, this would not apply to
Major Hasan because he is an American citizen. We are talking about
lone wolf provisions for those who are not U.S. citizens. But he was a
lone wolf, if you want to understand what a lone wolf is. He wasn't
officially connected with al Qaeda or anybody else, but he was in
conversation. He was incited by or inspired by. And if anybody doesn't
believe that he committed a terrorist attack, they don't know what
terrorism is.
You talk about a lone wolf. How about the guy who was on the airplane
on Christmas a little over a year ago? That would be a lone wolf. We
might have been able to collect information on him had we had an
opportunity to get some of this information.
Mr. DREIER. Will the gentleman yield?
Mr. DANIEL E. LUNGREN of California. I yield to the gentleman from
California.
Mr. DREIER. I thank my friend for yielding.
Mr. Speaker, we have the benefit of having my friend from Gold River,
my friend from Menomonee Falls here on the floor, and I would like to
ask each of them, if I might, if they would underscore the commitment
that was raised by the gentleman from Georgia.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. DREIER. Mr. Speaker, I yield myself 1\1/2\ minutes.
I would like to inquire of both my friends what kind of commitment
they are prepared to make in dealing with this, in light of the fact
that we have gone for an entire year following the 315-97 vote passage
of this measure without a single hearing being held.
First, I yield to my friend from Menomonee Falls, the chairman of the
Crime Subcommittee.
Mr. SENSENBRENNER. I thank the gentleman for yielding.
I plan on doing, with this reauthorization of the Patriot Act, the
same thing I did with the 2005 reauthorization of the Patriot Act.
Examine every one of the expiring provisions, let everybody speak their
piece, and let the House of Representatives work its will.
There have been no civil liberties violations on these three expiring
provisions. They have all been upheld as constitutional or not
challenged. And we did have a problem with business records, and we
solved that in 2005. So all of the fears that the gentleman from
Colorado is making I think are a red herring. We did it when we were in
the majority in the Judiciary Committee; and unfortunately, when the
other side was in the majority, they didn't do it. That's why we are
here today.
Mr. DREIER. Reclaiming my time, I would say to my friend that I think
it's very important to note that, as those hearings proceed, issues
that relate to civil liberties will clearly be part of the hearing
process and part of the debate.
Am I correct in concluding that?
I yield to my friend.
Mr. SENSENBRENNER. You are absolutely right. I did it 5\1/2\ years
ago, and you have my commitment I will do it again.
Mr. DREIER. I appreciate that.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. DREIER. Mr. Speaker, I yield myself an additional 45 seconds.
And I am happy to yield to the gentleman from Gold River to respond
to the question I propounded earlier.
Mr. DANIEL E. LUNGREN of California. Absolutely. I mean, the reason I
came to the House of Representatives was in response to 9/11, to try to
make sure we had the tools necessary to protect this country from these
kinds of attacks and, at the same time, as someone who has devoted his
entire life to enforcing the law but with the protection of civil
liberties, to make sure that is done in this case as well.
Let me just say one last thing about the roving wiretap. It is not
controversial. It has been used in domestic criminal cases since at
least 1980. And all it does is respond to new technology.
You have a wiretap that now grants authority--once proven--grants
authority to follow the person with whatever device he uses because--
guess what?--most people are not confined to a single landline today.
That's all this does. And you would think that we would have the same
provisions we use against criminals, that we could use those against
those who would want to destroy Americans and America, terrorists.
The SPEAKER pro tempore. The time of the gentleman has again expired.
Mr. DREIER. Mr. Speaker, I yield myself an additional 30 seconds.
I would just like to say in response to my friend on the roving
wiretap issue, it is fascinating. As I began my opening remarks, I was
talking about the fact that Mr. Gohmert showed me his iPad, which had
the headline on that iPad that the Secretary of Homeland Security,
Janet Napolitano, has indicated that the threat that exists today is
greater than it has been at any time since September 11, 2001. That
technology didn't exist back in 2001 or certainly back in 1980. The
roving wiretap is designed to focus on the potential terrorist and not
on some antiquated technology that we have.
With that, I reserve the balance of my time.
Mr. POLIS. I yield myself 30 seconds.
The gentleman from Wisconsin mentioned that he is not aware of abuses
under section 215. I would remind my colleagues that most of the uses
are classified under 215, and there has not yet been a briefing for
Members this Congress for us to make our assessment of whether there
have been abuses of section 215. I have not had a briefing nor has
there been one offered here to the Members of the 112th Congress. And I
think before we make a decision about section 215, we need to know how
it has been used. That's a very simple request.
With that, I yield 3 minutes to the gentleman from Ohio (Mr.
Kucinich).
Mr. KUCINICH. I would like to get back to first principles here. The
First Amendment, ``Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble, and to petition the government for a
redress of grievances.''
This Patriot Act represents a wholesale abandonment of the right to
assemble peaceably, of the right of freedom of association. This
Patriot Act is a square violation of the Fourth Amendment, ``The right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.''
Now, I can trust my friends on the other side of the aisle. They are
decent people. This isn't about Democrat versus Republican. It's not
about a Democratic President. It's not about if there was a Republican
President or if we will have one in the future. This is about something
actually much more important than all of us and then whoever might be
an executive. It's about the Constitution of the United States.
Congress made a mistake when it passed the Patriot Act. Instead of
sunsetting it and being done with it, we kept the provisions going.
Some of them were made permanent. This law today, we seek to
reauthorize certain sections of the Patriot Act. What I maintain is
that what we have here is a destructive undermining of constitutional
principles. We can't just say, well, let's trust our friends to do the
right thing. This is about the Constitution. This is beyond friendship.
This is beyond party. This is beyond who is the President. So I
disagree with President Obama on this.
It's interesting. At this very moment that our President is on
television celebrating the tremendous movement towards the free will of
the people of Egypt who have suffered real repression and suppression
of their basic liberties, we can celebrate something happening
thousands of miles away, but it would be much better for America if we
celebrated our Constitution.
What we have done with the Patriot Act, we have given the government
enormous power. We have given the government the authority to reach
deeply into people's private lives, into their business affairs without
a court order. We need to think about that. Some people say they don't
want government involved in certain things. Well, government is
involved in a way that is devastating when you come to the devastation
of constitutional principles, you give the FBI the ability to reach
into people's private lives without a court order.
[[Page H626]]
{time} 1420
I'm telling you, whether you're a Democrat or Republican, this is a
very dangerous thing that we're doing here.
Stand up for the Constitution.
[From the New York Times, Jan. 9, 2011]
Twitter Shines a Spotlight on Secret F.B.I. Subpoenas
(By Noam Cohen)
The news that federal prosecutors have demanded that the
microblogging site Twitter provide the account details of
people connected to the WikiLeaks easel including its
founder, Julian Assange, isn't noteworthy because the
government's request was unusual or intrusive. It is
noteworthy because it became public.
Even as Web sites, social networking services and telephone
companies amass more and more information about their users,
the government--in the course of conducting inquiries--has
been able to looke through much of the information without
the knowledge of the people being investigated.
For the Twitter request, the government obtained a secret
subpoena from a federal court. Twitter challenged the
secrecy, not the subpoena itself, and won the right to inform
the people whose records the government was seeking.
WikiLeaks says it suspects that other large sites like Google
and Facebook have received similar requests and simply went
along with the government.
This kind of order is far more common than one may think,
and in the case of terrorism and espionage investigations the
government can issue them without a court order. The
government says more than 50,000 of these requests, known as
national security letters, are sent each year, but they come
with gag orders that prevent those contacted from revealing
what the agency has been seeking or even the existence of the
gag orders.
``It's a perfect example of how the government can use its
broad powers to silence people,'' said Nicholas Merrill, who
was the first person to file a constitutional challenge
against the use of national security letters, authorized by
the USA Patriot Act. Until August, he was forbidden to
acknowledge the existence of a 2004 letter that the company
he founded, the Calyx Internet Access Corporation, received
from the F.B.I.
Mr. Merrill is now free to speak about the request, but
part of the gag order remains in place, and he is still
barred from discussing what information he had been asked to
provide. As a result, he said, before he gives a talk he
consults a six-page guide prepared by his lawyers at the
American Civil Liberties Union to be sure that he complies
with the order to avoid risking a punishment of five years in
prison.
The government cites national security as the reason the
contents of the letters--even their existence--are kept
secret. The F.B.I. is trying to prevent plots as they are
being hatched, according to Valerie Caproni, the general
counsel of the agency, and thus needs stealth.
In the case of a small Internet service provider like
Calyx, which was located in downtown Manhattan and had
hundreds of customers, even mentioning that the F.B.I. had
been sniffing around could harm an investigation, she said,
especially if ``the target is antsy anyway.''
Mr. Merrill, a 38-year-old from Brooklyn who studied
computer science and philosophy, said he created Calyx in
1994 when it was ``really pretty easy, there wasn't really
any competition.'' His clients included ``dozens of nonprofit
organizations and alternative media outlets.''
Mr. Merrill challenged the constitutionality of the letter
he received in 2004, saying the request raised ``red flags''
of being politically motivated. As a result of his suit and
two later ones, the law governing the letters has been
overturned and then revised by Congress.
In 2007, the F.B.I.'s inspector general found that the
agency had abused its own guidelines by including too many
peripheral people in its searches. The letters now receive
the ``individualized scrutiny'' of the agents who are filing
them, Ms. Caproni said.
All sides agree that it has become significantly easier to
challenge the letters' requests as well as their secrecy. At
the moment, there are no new challenges in the court system,
the government and the A.C.L.U. say.
The program, whose use has ``ticked up'' a bit in recent
years, Ms. Caproni said, is humming along. She added,
however, that the government had become more selective about
the types of companies to which it sent letters. ``All other
things being the same, one of the things investigators think
about is, `Who are we serving this? Are they comfortable with
this?' '' she said. ``Most of these N.S.L.'s are filed on
large companies. Why would they want to disclose that? Most
companies view it as good corporate citizenry.''
One critic of the law, former Senator Russ Feingold, said
in a statement that it was long past time for Congress ``to
rein in the use of national security letters.''
``This is not a partisan issue,'' Mr. Feingold said, ``it
is about the legislative branch providing an adequate check
on the executive branch. Republicans advocating limited
government should take a close look at these statutes and
consider supporting changes.''
Mr. Merrill argues that the blanket gag orders have
prevented a full public debate on the subject. He himself
largely left the I.S.P. business in 2004, independent of his
legal case, and only now has returned to hosting a couple of
clients as part of a nonprofit project, the Calyx Institute,
which aims to study how to protect consumers' privacy.
Regarding the news about Twitter, he wrote in an e-mail:
``I commend Twitter's policy of notifying their customers of
government requests for their private data and for their
challenging and subsequently removing the gag order. This is
a great example of the government's misuse of secrecy
provisions and of exemplary privacy ethics on behalf of
Twitter.''
Ms. Caproni, who has testified before Congress about the
program, said that it had been more than amply debated.
``People at the A.C.L.U. and the press'' think the letters
are ``a bigger deal than the companies.''
To one of Mr. Merrill's A.C.L.U. lawyers, Jameel Jaffer,
the smooth operation of the system is a sign that it is not
working. The privacy rights at stake are not those of the
companies who hold the information, Mr. Jaffer said, but
``about people whose records are held.'' And those people
should be told, he said.
``People used to be the custodians of their own records,
their own diaries. Now third parties are custodians of all
that,'' he said. ``Everything you do online is entrusted to
someone else--unless you want to go completely off the grid,
and I'm not even sure that is possible.''
____
[From the New York Times, Mar. 13, 2008]
F.B.I. Made `Blanket' Demands for Phone Records
(By Eric Lichtblau)
Washington.--Senior officials of the Federal Bureau of
Investigation repeatedly approved the use of ``blanket''
records demands to justify the improper collection of
thousands of phone records, according to officials briefed on
the practice.
The bureau appears to have used the blanket records demands
at least 11 times in 2006 alone as a quick way to clean up
mistakes made over several years after the Sept. 11, 2001,
attacks, according to a letter provided to Congress by a
lawyer for an F.B.I. agent who witnessed the missteps.
The F.B.I. has come under fire for its use of so-called
national security letters to inappropriately gather records
on Americans in terrorism investigations, but details have
not previously been disclosed about its use of ``blanket''
warrants, a one-step operation used to justify the collection
of hundreds of phone and e-mail records at a time.
Under the USA Patriot Act, the F.B.I. received broadened
authority to issue the national security letters on its own
authority--without the approval of a judge--to gather records
like phone bills or e-mail transactions that might be
considered relevant to a particular terrorism investigation.
The Justice Department inspector general found in March 2007
that the F.B.I. had routinely violated the standards for
using the letters and that officials often cited ``exigent''
or emergency situations that did not really exist in issuing
them to phone providers and other private companies.
In an updated report due out on Thursday, the inspector
general is expected to report that the violations continued
through 2006, when the F.B.I. instituted new internal
procedures.
The inspector general's ongoing investigation is also said
to be focusing on the F.B.I.'s use of the blanket letters as
a way of justifying the collection of large amounts of
records at one time. F.B.I. officials acknowledged the
problem Wednesday, calling it inadvertent, and said officials
had been instructed that they could no longer issue blanket
orders. Instead, officials have to determine why particular
records are considered relevant.
A letter sent last week to Senator Charles E. Grassley,
Republican of Iowa, provides new details on the F.B.I.'s use
of the national security letters, including the practice of
issuing the blanket demands.
A copy of the letter was provided to The Times. It was
written by Stephen M. Kohn, a Washington lawyer representing
Bassem Youssef, an F.B.I. agent who reported what he thought
were abuses in the use of national security letters and was
interviewed for three days by the inspector general. In a
separate matter, Mr. Youssef is suing the F.B.I. in a
discrimination claim.
Mr. Grassley said Wednesday that he was concerned by the
issues raised in Mr. Kohn's letter.
``In the past, the F.B.I. has shown a propensity to act as
if it were above the law,'' he said. ``That attitude clearly
needs to stop. Part of the way we can help the F.B.I. clean
up its act is to pay close attention to information from
whistle-blowers like Bassem Youssef. We need aggressive
follow-up from the inspector general to ensure accountability
and reform.''
By 2006, F.B.I. officials began learning that the bureau
had issued thousands of ``exigent'' or emergency records
demands to phone providers in situations where no life-
threatening emergency existed, according to the account of
Mr. Youssef, who worked with the phone companies in
collecting records in terrorism investigations. In these
situations, the F.B.I. had promised the private companies
that the emergency records demands would be followed up with
formal subpoenas or properly processed letters, but often,
the follow-up material never came.
This created a backlog of records that the F.B.I. had
obtained without going through proper procedures. In
response, the letter said, the F.B.I. devised a plan: rather
than
[[Page H627]]
issuing national security letters retroactively for each
individual investigation, it would issue the blanket letters
to cover all the records obtained from a particular phone
company.
``When Mr. Youssef was first informed of this concept, he
was very uncomfortable with it,'' his lawyer, Mr. Kohn, said
in his letter to Senator Grassley. But the plan was
ultimately approved in 2006 by three senior officials at
highest levels of the F.B.I., and in the process, Mr. Kohn
maintains, the solution may have worsened the problem.
``They made a mistake in cleaning up a mistake,'' Mr. Kohn
said, ``because they didn't know the law.''
An F.B.I. official who asked for anonymity because the
inspector general is still examining the blanket warrant
issue said the practice was ``an attempt to fix a problem.''
``This was ham-handed but pure of heart,'' the official
said. ``This was nothing evil, but it was not the right way
to do it.''
Mr. DREIER. Mr. Speaker, I yield 30 seconds to the gentleman from
Wisconsin (Mr. Sensenbrenner).
Mr. SENSENBRENNER. Mr. Speaker, the Patriot Act has been the law for
over 9 years, and not one of those 17 sections has been declared
unconstitutional by any court in the United States. The argument that
has been advanced by the gentleman from Ohio is just plain wrong. There
has been plenty of opportunity to sue and to get parts of the Patriot
Act declared unconstitutional. Most of these provisions haven't been
challenged. So let's stick to the facts, rather than making up
arguments that simply do not exist with the Patriot Act.
Mr. POLIS. Mr. Speaker, I yield 3 minutes to the gentlewoman from
Texas (Ms. Jackson Lee), a member of the Judiciary Committee.
Ms. JACKSON LEE of Texas. Mr. Speaker, we are not the judiciary. We
are the people's voice. We are the United States Congress. The issue of
whether a court has ruled any of this unconstitutional is the
prerogative of that court, but we have the prerogative to address the
issues dealing with the people's voice. And so I am disturbed that this
comes to the floor, first, as a suspension, which was defeated by the
people's voice, and then now through some unique trickery to come with
a closed rule so that the people's voice is shut down. This
Constitution deserve more.
The Founding Fathers were wise enough to establish three branches of
government. This House is called the people's House and, therefore, we
have the right to have a voice. That voice was already expressed by
Members on both sides of the aisles, Republicans and Democrats, who
voted this down because of the lack of opportunity to engage on behalf
of the people. What more needs to be said?
Now, let me say this about the Constitution and about this process.
First of all, we have been in some very difficult times, and we
understand the crisis of terrorism and the aftermath of 9/11; but let
us be reminded that in those early stages when we developed this
Constitution, those men who were on this floor had to be concerned
about the oppressiveness of the state that owned and dominated this
country before it was. Yet they did not yield to not putting in the
Constitution the Fourth Amendment, which says that we should not be
subjected to unreasonable search and seizure.
I want to remind my friends that when the Democrats attempted to have
open hearings in 2005, the Republicans shut us down. They would not
allow us to have people of a different perspective. They turned off the
lights. They sent us home. They wouldn't let the people be heard. Is
that what we're going to get now?
And so I raise the question about the roving wiretap. My friend on
the other side of the aisle is incorrect. This is more restrictive than
general criminal law, and all we ask is allow us to amend it so it
conforms to general criminal laws. That is the point.
I offered an amendment with Mr. Conyers that talks about requiring a
different standard other than the knowledge requirement when someone
breaks into your house. When they come into your house and come into
your office, we need to have a standard that is articulated so that
innocent persons are protected.
We realize that we live under a cover of terrorism. We are patriots
as well. We join with the Patriot Act.
And I must say to my good friend from Wisconsin, the most shining
moment of the Judiciary Committee was after 9/11 when we constructed
together, Republicans and Democrats, I believe, the best Patriot Act
going forward. But, unfortunately, his majority at that time took that
bill that we had developed in the Judiciary Committee in a responsible
bipartisan manner with the emotion and the backdrop of 9/11 behind us
and skewed it in a way that, frankly, narrowed the rights of Americans.
It doesn't matter whether these cases have been selected.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. POLIS. Mr. Speaker, I yield the gentlewoman another 30 seconds.
Ms. JACKSON LEE of Texas. It doesn't matter if these cases have been
challenged by the court, Mr. Speaker. It matters whether the people of
this place, the people's House, have a time to respond.
Mr. DREIER. Will the gentlewoman yield?
Ms. JACKSON LEE of Texas. I yield to the gentleman for a few seconds.
Mr. DREIER. I thank my friend for yielding. And I would just say,
first of all, I appreciate the bipartisan support for the effort led by
our friend from Menomonee Falls, Wisconsin, which I think is terrific.
The question that I would propound to my friend is, if we look at the
February 25 passage of this measure by a vote of 315-97 and the 1-year
period of time, I know that the gentlewoman, as a member of the
Judiciary Committee and the Homeland Security Committee, certainly
would have wanted to have hearings or support the notion of hearings. I
wonder why there weren't hearings held during that 1-year period of
time.
The SPEAKER pro tempore. The time of the gentlewoman has again
expired.
Mr. POLIS. I yield the gentlewoman another minute.
Ms. JACKSON LEE of Texas. As the gentleman well knows, February 25 is
coming up. So the very fact that hearings had not been held----
Mr. DREIER. I am talking about February 25 of last year. Last year
was when this was passed, a year ago.
Ms. JACKSON LEE of Texas. Hearings had not been held as of December
2010. He knows that if we were in charge we would have had the
appropriate hearings necessary to go forward before February 25.
The SPEAKER pro tempore. The time of the gentlewoman has again
expired.
Mr. POLIS. I yield the gentlewoman another 15 seconds.
Ms. JACKSON LEE of Texas. Mr. Speaker, if hearings were not held by
December 31, 2010, the gentleman knows that he cannot question whether
or not we would have had the appropriate hearings before February 25
because we are not in charge. And why we're asking you to let the voice
of the people speak, and 2 days ago the voice of this House spoke,
Republicans and Democrats voted this down because they believed the
voice of the people should ensure that the Fourth Amendment of
unreasonable search and seizure has not been violated. And by the
passage of this bill today we thwart that and we fly in the face of
those constitutional supporters that we can still have freedom.
Mr. DREIER. Mr. Speaker, I yield myself 30 seconds.
The point is, February 25 of 2010 there was an entire session of
Congress. It was when the Democrats were in the majority. During that
period of time, through the entire 1-year extension, there was not a
single hearing held; and I know that my friend, as a member of the
Homeland Security Committee and the Judiciary Committee, would have
been a strong proponent of holding those hearings. And that's why it
just surprises me that, assuming that she did insist on them, that she
was unsuccessful, Mr. Speaker, in the quest to get those hearings.
And I should add that the organization for the 112th Congress is just
under way today, in fact, due to the fact that the minority has refused
to allow the organization to take place. So there has been a year
period of time. And I wish very much, Mr. Speaker, that there had, in
fact, been hearings over the last year.
I am happy to yield 3 minutes to my very good friend from Tyler,
Texas (Mr. Gohmert), the vice chairman of Mr. Sensenbrenner's Crime
Subcommittee.
[[Page H628]]
Mr. GOHMERT. Mr. Speaker, there have been some great questions raised
about these provisions in the Patriot Act; but it's hard to believe
that for all of last year, when Democrats had the majority in this
body, that if those same arguments had been made to Speaker Pelosi and
to Chairman Conyers, that they would have just continued to deny for an
entire year the chance to have a hearing on these things. Either,
surely, they were not asked for the hearings on those things when they
had the majority and could have done it, or they did ask. But if they
did ask, why would they elect the same Speaker to be their leader going
into this term if she was so entirely nonresponsive to their pleas like
they've made on the floor this year?
Now, look, going back to 2005, for that first extension, we had some
very heated debates, as Chairman Sensenbrenner will remember, in
private over what we should do. And there were a couple of us that
fought hard in private to have sunsets on those provisions.
And my friend, Mr. Lungren, happened to have the amendment there that
would allow the sunsets on these.
{time} 1430
And some of those concerns are the very concerns that have been
brought up by my Democratic friends here. We want to make sure the
abuses are not occurring, but so far we have not gotten the information
from this administration to tell us what they have been doing. And one
of the reasons we have sunsets on there is so that we can force them to
be accountable as they have not for the last 2 years.
I want those hearings. You have been assured we will have those
hearings that you couldn't get from your own party last year. We are
going to have them. We are going to find out if there are any abuses,
and then we will be able to know what should be done.
But please know, under the Fourth Amendment, of course, a person has
the reasonable expectation of privacy in their own person, house, or
place. And that does not apply here. This is not to an expectation of
privacy in somebody else's property. That's not what the Fourth
Amendment addresses. But I want to find out how this has been used.
Please know that last year in the extension, all the things that my
friends across the aisle are screaming about, we didn't have a chance
to amend; we didn't have a chance to recommit. You have got that on
this bill.
And as far as the vote on Monday, it was under suspension, had to be
two thirds. I think it was stupid to bring it under suspension, because
if they had brought it under a rule it passed because the vote was 277-
148. Now they are doing what they should have done the other day. They
are new at leadership. They are living and learning; hopefully, they
are not just living. But we will have the hearings. We will address
these matters, and we will find out if it should be done for more than
1 year. But in the meantime, we appreciate the concern and hope you
will express it this year.
Mr. POLIS. I yield myself 1 minute to respond.
At this point in the 112th Congress, the Judiciary Committee has
found time to hold several hearings. I have been informed that they
have held hearings on topics that are certainly important--immigration,
relating to health care and malpractice--and yet this topic that is
being discussed today, something that is so fundamental to our identity
as Americans, has not benefited from a single hearing in the 112th
Congress.
And one cannot say, oh, it's because they haven't had hearings or
they're just reconstituting themselves. I have been informed that they
have actually had several hearings to date; they have just simply been
on other topics. Apparently, this hearing isn't important enough to
warrant a hearing in the early part of the 112th Congress.
One of the difficulties in exercising oversight with regard to
section 215 is that the orders are prohibited from being disclosed that
they got an order to anyone but their attorneys. So we have very little
ability, absent a classified briefing, which we have not been offered,
to even find out if section 215 has been abused or not.
With that, I yield 1 minute to the gentleman from Ohio (Mr.
Kucinich).
Mr. KUCINICH. The gentleman makes a point; and that is, if you are
under a gag order, how are we supposed to know if there are any abuses?
Hello.
What Mr. Gohmert said a moment ago, I want to associate myself with
much of his remarks. And I have here, to submit for the Record,
correspondence that I submitted on November 3, 2009, asking for review
of the provisions of the Patriot Act that actually we are looking at
today.
We create government to secure our rights, not to give them away. The
Patriot Act represents giving away rights, not securing them. It's
said, well, it hasn't been adjudicated.
The laws that we make derive from our constitutional authority, and
that's not just a matter of political will but it's about moral
reasoning. And when we look at section 215, which lets the government
obtain orders for private records or items from people who are not
connected to any investigation----
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. POLIS. I yield the gentleman an additional 30 seconds.
Mr. KUCINICH. When we look at section 206, which allows the FBI to
obtain an order from FISA to wiretap a target without having to specify
the target or device; when we look at section 6001, which authorizes
the government to conduct investigations of non-U.S. individuals not
connected to a foreign power or terrorist group, effectively allows the
government to circumvent standards that are required to obtain
electronic surveillance orders from criminal courts; when we look at
these things, these provisions are divorced from our constitutional
experience. They are divorced from what we know are commonsense
provisions of what our rights ought to be. That's why I'm opposed to
the extension of the Patriot Act and why, if we had any sense, we would
repeal the whole thing.
November 3, 2009.
Hon. John Conyers, Jr.
Chairman, Committee on the Judiciary, House of
Representatives,
Washington, DC.
Dear Chairman Conyers: I applaud you for your leadership on
reconsideration of various provisions of the Patriot
Amendments Act and FISA Amendments Act of 2009. These bills
provide a number of significant reforms that are important
steps toward restoring Congressional oversight of government
surveillance and civil liberties protections. I urge you to
protect the Constitutional rights and the civil liberties of
all Americans by ensuring that the legislation includes the
following essential reforms:
Enact stringent requirements for obtaining ``Roving
Wiretaps'': Section 206 of the USA PATRIOT Act, known as the
``John Doe wiretap'' currently allows the Federal Bureau of
Investigation (FBI) to obtain an order from the Foreign
Intelligence Surveillance Court (FISC) to wiretap a target
without having to specify the target or the device. Any
reauthorization must include reforms that require the FBI to
identify the device(s) to be wiretapped and to provide
evidence that the person they are targeting is ``an agent of
a foreign power'' and is using the device prior to
wiretapping the device(s).
``Lone Wolf'' surveillance provision must not be
reauthorized: Section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 authorizes the government to
conduct investigations of non-U.S. individuals not connected
to a foreign power or terrorist group. The government has
never had to use this provision. The likelihood of someone
acting alone while engaging in international terrorism is
highly unlikely. This provision must not be reauthorized.
Repeal blanket authorities in Section 215 of the PATRIOT
Act: Section 215 of the USA PATRIOT Act, known as the
``Business Records'' provision, allows the FBI to order any
entity (person or business) to turn over ``any tangible
things'' as long as it specifies it is for ``an authorized
investigation.'' Section 215 orders constitute a serious
violation of Fourth Amendment and First Amendment rights`` by
allowing the government to demand access to records often
associated with the exercise of First Amendment rights such
as library records and medical records. Authorization that
allows the FBI to demand information from or about innocent
Americans who are not a target of an investigation or who are
not ``agents of a foreign power'' must be repealed.
Reform National Security Letter (NSL) Issuance: The Justice
Department's Inspector General has found that upwards of
50,000 NSLs are issued every year, many against innocent
people two and three times removed from a terror suspect. The
Department of Justice Inspector General report in 2008 on the
FBI's use of NSLs stated that 57 percent of all NSLs were
issued to gather information on Americans. Judicial review
must be reinstated and any legislation that includes this
powerful tool that can collect communication, financial and
credit information must only be used against suspected
terrorists.
[[Page H629]]
Reform NSL Gag Orders: NSLs come with a draconian gag order
that is almost impossible to fight in court because they
simply are not allowed to communicate about it. If the
government certifies to a judge that national security would
be harmed without a gag on the recipient of an NSL, the court
must find that certification conclusive. This bill must force
the government to justify a gag order to a judge and permit
that judge to engage in long standing First amendment
analysis before ruling.
Reform Material Support Statute: The government has used
the material support statute of the USA PATRIOT Act to
criminalize humanitarian aid by penalizing individuals or
groups that provide aid to communities in conflict zones.
Inside these zones, groups that are often included on the
Treasury's Foreign Terrorist Organization (FTO) list control
schools, refugee camps and hospitals. The statute as
currently written does not require the government to prove
the individual or group accused of supporting an FTO had any
specific intention of directing aid to the FTO. This statute
must be reformed by requiring the government to provide
``specific and articulable'' facts that make the case that
there was a specific intention to direct aid to an FTO.
Repeal de-facto immunity to telecomm companies for illegal
spying: The FISA Amendments Act of 2009 repeals de-facto
immunity afforded to telecommunication companies that spy on
Americans as allowed by the FISA Amendments Act of 2008. The
government and telecommunication companies must be held
accountable for violating privacy and First Amendment rights
of Americans. This year's reauthorization must ensure that
immunity for telecommunication companies is repealed.
Enact a ban on ``bulk collection'' under FISA: The FISA
Amendments Act of 2008 allowed the dragnet collection of all
international phone calls and emails of U.S. residents
without warrants or even suspicion. We must ensure that the
surveillance of suspected terrorists abroad does not infringe
the civil liberties and Fourth Amendment rights of Americans.
Any language regarding surveillance of international phone
calls and emails of U.S. residents must ensure that the
government is required to provide evidence that the targeted
communication pertains to a foreign power.
Thank you for consideration of these legislative
benchmarks. I and my staff stand ready to work with you in
your efforts to restore Constitutional protections and civil
liberties to the American people.
Sincerely,
Dennis J. Kucinich,
Member of Congress.
Mr. DREIER. Mr. Speaker, I am happy to yield 3\1/2\ minutes to the
distinguished chair of the Intelligence Committee, our friend from
Brighton, Michigan (Mr. Rogers).
Mr. ROGERS of Michigan. Mr. Speaker, I am excited at my colleague's
renewed interest in the Constitution. This is a good day for this House
and this country, but I can't think of a bill and provisions that have
been more misrepresented than what happens in this Patriot Act
extension. And, A, I think they make all the arguments in the world why
we don't make this permanent: Let's give this an extension so you have
time to talk about it. But there is an inescapable fact at hand: By the
end of this month, these provisions will expire.
There are agents in law enforcement and our intelligence community
who are preparing briefs to go to the court, the FISA court, to use
these provisions. They will not be able to do it on March 1. Why would
we let that happen? Let me give you a great example.
I used to be an FBI agent. I worked organized crime. When they were
involved in drugs, we went out. We built a case. We did a brief. We
took it to the judge and we got a court order to do whatever, roving
wiretaps. Yes, before this bill, roving wiretaps. Why? Because they
would use different phones to conceal the criminality of their efforts.
Well, guess what? We have that happening now with terrorists. They go
and buy a thousand--a thousand phones that you buy that are already
preprogrammed. They will use it for one call and throw it away.
What you are saying is we don't care that somehow it's okay for you
to go after a drug dealer, a Mafia don who uses his brother-in-law's
phone, but you don't want to use this provision to go after a terrorist
who is trying to hide their identity and their conversations and their
contents to build a radiological bomb. It's ludicrous. Why would we do
that to ourselves? And make no mistake; you are putting Americans in
danger when you let this expire.
On the roving wiretap, the FBI Director today said, in an open
hearing, less than 500 times it has even been used. It is hard to get a
wiretap. But what you are saying is, after March 1, well, we can
continue to do it for a drug dealer, but you can't go to the FISA court
and get a wiretap on a terrorist who is using these phones for God
knows what. Why would we do that to ourselves? Why would we jeopardize
American safety?
When it comes to business records, at the New York Times, if you got
him before he wanted to do his event, you could actually go to the
hardware store and get those business records where he was buying
materials to assemble a bomb, under the FISA court and Patriot Act. But
what you are saying is we would rather wait until it explodes and kills
thousands and thousands of people, and the FBI can go to the same
hardware store and use a criminal subpoena to get the same records.
It makes no sense whatsoever that we would let this bill expire at
the end of the month and jeopardize the safety and security of the
United States.
When you look at the lone wolf provision, if you heard what the
Director of the NCTC today and yesterday was talking about, that the
most dangerous threat that we have is somebody like Awlaki from Yemen
trying to radicalize an individual and get them to do something God
awful, like The New York Times Square bomber, like the Christmas Day
bomber, like the Hasan shooting at Fort Hood. That's their interest. If
you take away the lone wolf provision and the government can't quite
prove that they are a part of al Qaeda but we know they are doing
something, you have handcuffed them to stop it before it happens.
One of the reasons that we don't have an attack here is because this
act has been in place and they have used it judiciously. There have
been no civil liberties violations, Mr. Speaker.
I urge this body's appreciation to pass this rule.
{time} 1440
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore. The Chair would remind Members to address
their remarks to the Chair.
Mr. POLIS. I reserve the balance of my time.
Mr. DREIER. Mr. Speaker, I yield 2 minutes to a hardworking new
Member of this body, my friend from Drexel Hill, Pennsylvania (Mr.
Meehan).
Mr. MEEHAN. Mr. Speaker, it is a great pleasure to be here as a
Congressman, but before I came here, I served as a prosecutor, both a
Federal prosecutor and a State prosecutor, and I have actually been
probably one of the few people who has actually been involved in
investigations who have used the Patriot Act, used the Patriot Act
against the proclaimed Imperial Wizard of the KKK in plotting to take
handgrenades to blow up an abortion clinic. It helped us to be able to
resolve a case and see a just sentence.
But what is happening today by virtue of these provisions is the
ability for us not to just use what was important then in 2003, but to
appreciate the changing nature of technology and the need for law
enforcement to be able to keep pace with that.
This roving wiretap simply allows law enforcement to be able to track
the individual rather than the phone. You have to appreciate that law
enforcement is operating in real time. I have heard many references as
well to the idea of the sort of lack of due process, and because we are
dealing with the issue of a potential terrorist, we are looking at it
differently from the context of the probable cause context, but we are
going before the FISA court.
Mr. Rogers explained specifically about the need to take this same
information of probable cause before a court, and even if that phone is
changed after the fact, we have to report back to the judge about what
has been done with that phone. The protections have been built in with
what Congress did. I was in the Justice Department when we came before
you, and you fixed these provisions significantly.
Lastly, I now chair a subcommittee of Homeland Security dealing with
the issue of terrorism and the lone wolf provision. It was Janet
Napolitano who talked about the changing nature of the threat and this
being one of the most serious times since 9/11.
Mr. Speaker, we must stand together and support those that are on the
front line with these commonsense changes that have already been put
into the bill. We are not going over new territory here. What we are
doing is allowing those on the front line to use the
[[Page H630]]
tools before them to keep America safe. I urge support for this
provision.
Mr. POLIS. Mr. Speaker, I want to again bring your attention to
section 215 and the difficulty which we in this body and the American
people as a whole have with regard to exercising oversight over abuse
of government authority.
An example that I gave earlier, the American Library Association
confirmed that the Federal Government went into a library and asked for
the list of everybody who checked out a book on Osama bin Laden. Now,
recipients of 215 orders can't even disclose that they received such an
order to anybody but their attorneys. So what ability do we have as the
People's House to exercise oversight about whether there are abuses?
It has been brought out by several people on the other side, my
colleague from Wisconsin, oh, there aren't abuses. Well, if there is a
secretive process that prevents us from knowing about abuses, how are
we to know in fact whether there are abuses?
I also want to discuss section 206 that we are discussing the renewal
of here today, the provision of the bill that allows the government to
conduct the roving wiretaps. This allows the government to obtain
surveillance warrants that don't even specify the person or the object
that is being tapped. It could involve tapping an entire neighborhood
of telephones that a suspect might use--an unnamed suspect--might use
or might not use. There is nothing even to specifically prohibit it
from being an entire city of telephone calls being tapped. And we don't
know how it has been used. The Fourth Amendment clearly states that
warrants need to specify the person and places to be seized and
searched with particularity.
Mr. Speaker, we began this session of Congress by reading the United
States Constitution, including the Fourth Amendment, here in the House
of Representatives. We did that to help make sure that the executive
branch or the legislative branch don't have unfettered power to decide
singlehandedly who and how to search private citizens and seize their
properties.
The Founding Fathers were rightfully worried about the possibility of
the central government issuing general warrants that would give it far-
reaching power to spy on its citizens and intervene in their private
lives. We should honor the Founding Fathers' clear wishes expressed in
our Constitution instead of authorizing our Federal Government this
kind of power.
Now, the justification used for this provision is that the government
needs to have the ability to spy on a suspect as they move from phone
to phone. No, no one objects to that authority when the security of the
American people is at stake. But that doesn't mean that the government
shouldn't have to specify who they are going to spy on and under what
conditions. In fact, under Federal criminal law, the government is
already required to state either the person or the place that is
subject to the wiretap.
It is these sorts of commonsense revisions that I think we could
achieve bipartisan consensus on to provide a longer-term stability with
regard to the necessary provisions of the Patriot Act.
The final section that will be reauthorized in the bill, section
6001, deals with the ``lone wolf'' provisions which were alluded to by
the last two speakers which allows secret surveillance of noncitizens
in the U.S. even if they are not connected to any terrorist group or
foreign power.
Now, this authority is only granted in secret courts and again
threatens our understanding of the limits of our Federal Government's
investigatory powers within the borders of our own country. It blurs
the line between domestic national security and foreign intelligence.
It is clear that we allow a process to improve this.
My friends on the other side of the aisle say they are worried about
the growth of government, yet in spite of all the rhetoric about how
the government is trying to take over your lives, this, their fifth
bill under a rule, actually gives the government the ability to spy on
innocent Americans. No wonder so many Republicans joined so many
Democrats in voting against this bill earlier this week.
I urge all of my colleagues who are worried about the unchecked
growth of the state, anyone who seriously believes in protecting the
rights and liberties of Americans, or anyone who simply thinks that we
need to take some time to seriously look at these issues to debate
them, to vote ``no'' on this bill, to force a discussion of these
issues, rather than vague promises of future hearings or markups to
improve this bill. Let's accelerate that timeline, Mr. Speaker, to
ensure that the concerns of the American people to help protect what it
means to be an American, what is so close to our identity as Americans,
protecting our individual liberties according to the Founding Fathers
as articulated in our Constitution, we can reconcile that with the need
to protect the American people's safety, and let us begin that work.
With that, I yield back the balance of my time.
Mr. DREIER. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, the only way for us to guarantee the rights of every
American and to ensure that we will be going down the road to be a safe
nation is to pass this extension so that these very able gentleman can
proceed with the kinds of hearings that are necessary so that we assure
that all the rights we need are protected and that we are a safe and
secure country.
I yield back the balance of my time, and I move the previous question
on the resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. POLIS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on adoption of House Resolution 79 will be followed by 5-
minute votes on ordering the previous question on House Resolution 73
and adopting House Resolution 73, if ordered.
The vote was taken by electronic device, and there were--yeas 248,
nays 176, not voting 9, as follows:
[Roll No. 29]
YEAS--248
Ackerman
Adams
Aderholt
Akin
Alexander
Altmire
Amash
Austria
Bachmann
Bachus
Barletta
Bartlett
Barton (TX)
Bass (NH)
Benishek
Berg
Biggert
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Black
Blackburn
Bonner
Bono Mack
Boren
Boswell
Boustany
Brady (TX)
Brooks
Broun (GA)
Buchanan
Bucshon
Buerkle
Burgess
Burton (IN)
Calvert
Camp
Campbell
Canseco
Cantor
Capito
Carter
Cassidy
Chabot
Chaffetz
Chandler
Coble
Coffman (CO)
Cole
Conaway
Cooper
Costa
Cravaack
Crawford
Crenshaw
Culberson
Davis (KY)
Denham
Dent
DesJarlais
Diaz-Balart
Dold
Dreier
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Emerson
Farenthold
Fincher
Fitzpatrick
Flake
Fleischmann
Fleming
Flores
Forbes
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gardner
Garrett
Gerlach
Gibbs
Gingrey (GA)
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guinta
Guthrie
Hall
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Hayworth
Heck
Heller
Hensarling
Herger
Herrera Beutler
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (IL)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Kelly
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kissell
Kline
Lamborn
Lance
Landry
Lankford
Latham
LaTourette
Latta
Lewis (CA)
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marino
McCarthy (CA)
McCarthy (NY)
McCaul
McCotter
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meehan
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mulvaney
Murphy (PA)
Myrick
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Palazzo
Paulsen
Pearce
Pence
Peters
Peterson
Petri
Pitts
Poe (TX)
Pompeo
Posey
Price (GA)
Quayle
Reed
Rehberg
Reichert
Renacci
Ribble
Rigell
Rivera
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross (AR)
Ross (FL)
Royce
Runyan
Ryan (WI)
Scalise
Schilling
Schmidt
Schock
Schweikert
Scott (SC)
Scott, Austin
[[Page H631]]
Sensenbrenner
Sessions
Shimkus
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stearns
Stivers
Stutzman
Sullivan
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner
Upton
Walberg
Walden
Walsh (IL)
Webster
West
Westmoreland
Whitfield
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Young (AK)
Young (FL)
Young (IN)
NAYS--176
Andrews
Baca
Baldwin
Barrow
Bass (CA)
Berkley
Berman
Blumenauer
Brady (PA)
Braley (IA)
Brown (FL)
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson (IN)
Castor (FL)
Chu
Cicilline
Clarke (MI)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly (VA)
Conyers
Costello
Courtney
Critz
Crowley
Cuellar
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
DeLauro
Deutch
Dicks
Dingell
Doggett
Donnelly (IN)
Doyle
Edwards
Ellison
Engel
Eshoo
Farr
Fattah
Filner
Frank (MA)
Fudge
Gibson
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Hanabusa
Hastings (FL)
Heinrich
Higgins
Himes
Hinchey
Hinojosa
Hirono
Holden
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson Lee (TX)
Johnson (GA)
Johnson, E. B.
Kaptur
Keating
Kildee
Kind
Kucinich
Labrador
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lujan
Lynch
Maloney
Markey
Matheson
Matsui
McClintock
McCollum
McDermott
McGovern
McNerney
Meeks
Michaud
Miller (NC)
Miller, George
Moore
Moran
Murphy (CT)
Nadler
Napolitano
Neal
Olver
Owens
Pallone
Pascrell
Pastor (AZ)
Paul
Payne
Pelosi
Perlmutter
Pingree (ME)
Polis
Price (NC)
Quigley
Rahall
Rangel
Reyes
Richardson
Richmond
Rothman (NJ)
Roybal-Allard
Ruppersberger
Rush
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schrader
Schwartz
Scott (VA)
Scott, David
Serrano
Sewell
Sherman
Shuler
Sires
Slaughter
Smith (WA)
Speier
Stark
Sutton
Thompson (CA)
Thompson (MS)
Tierney
Tonko
Towns
Tsongas
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watt
Waxman
Weiner
Welch
Wilson (FL)
Woolsey
Wu
Yarmuth
NOT VOTING--9
Becerra
Bilbray
Garamendi
Giffords
Harman
Lewis (GA)
Platts
Ryan (OH)
Shuster
{time} 1511
Messrs. INSLEE, LARSON of Connecticut, and RANGEL changed their vote
from ``yea'' to ``nay.''
Mr. MACK changed his vote from ``nay'' to ``yea.''
Mr. JOHNSON of Illinois changed his vote from ``present'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________