109th Congress Rept. 109-174
HOUSE OF REPRESENTATIVES
1st Session Part 1
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USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
_______
July 18, 2005.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3199]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 3199) to extend and modify authorities needed to combat
terrorism, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 6
Hearings......................................................... 47
Committee Consideration.......................................... 47
Vote of the Committee............................................ 47
Committee Oversight Findings..................................... 71
New Budget Authority and Tax Expenditures........................ 72
Congressional Budget Office Cost Estimate........................ 72
Performance Goals and Objectives................................. 73
Constitutional Authority Statement............................... 73
Section-by-Section Analysis and Discussion....................... 73
Changes in Existing Law Made by the Bill, as Reported............ 81
Markup Transcript................................................ 95
Dissenting Views................................................. 444
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``USA PATRIOT and Terrorism Prevention
Reauthorization Act of 2005''.
SEC. 2. REFERENCES TO USA PATRIOT ACT.
A reference in this Act to the USA PATRIOT ACT shall be deemed a
reference to the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001.
SEC. 3. USA PATRIOT ACT SUNSET PROVISIONS.
(a) In General.--Section 224 of the USA PATRIOT ACT is repealed.
(b) Sections 206 and 215 Sunset.--Effective December 31, 2015, the
Foreign Intelligence Surveillance Act of 1978 is amended so that
sections 501, 502, and 105(c)(2) read as they read on October 25, 2001.
SEC. 4. REPEAL OF SUNSET PROVISION RELATING TO INDIVIDUAL TERRORISTS AS
AGENTS OF FOREIGN POWERS.
Section 6001 of the Intelligence Reform and Terrorism Prevention Act
of 2004 (Public Law 108458; 118 Stat. 3742) is amended by--
(1) striking subsection (b); and
(2) striking ``(a)'' and all that follows through ``Section''
and inserting ``Section''.
SEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SECTION 2332B AND THE
MATERIAL SUPPORT SECTIONS OF TITLE 18, UNITED
STATES CODE.
Section 6603 of the Intelligence Reform and Terrorism Prevention Act
of 2004 (Public Law 108458; 118 Stat. 3762) is amended by striking
subsection (g).
SEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION
UNDER SECTION 203(B) OF THE USA PATRIOT ACT.
Section 2517(6) of title 18, United States Code, is amended by adding
at the end the following: ``Within a reasonable time after a disclosure
of the contents of a communication under this subsection, an attorney
for the Government shall file, under seal, a notice with a judge whose
order authorized or approved the interception of that communication,
stating the fact that such contents were disclosed and the departments,
agencies, or entities to which the disclosure was made.''.
SEC. 7. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES PERSONS
UNDER SECTION 207 OF THE USA PATRIOT ACT.
(a) Electronic Surveillance.--Section 105(e) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(e)) is amended--
(1) in paragraph (1)(B), by striking ``, as defined in
section 101(b)(1)(A)'' and inserting ``who is not a United
States person''; and
(2) in subsection (2)(B), by striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''.
(b) Physical Search.--Section 304(d) of such Act (50 U.S.C. 1824(d))
is amended--
(1) in paragraph (1)(B), by striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''; and
(2) in paragraph (2), by striking ``as defined in section
101(b)(1)(A)'' and inserting ``who is not a United States
person''.
(c) Pen Registers, Trap and Trace Devices.--Section 402(e) of such
Act (50 U.S.C. 1842(e)) is amended--
(1) by striking ``(e) An'' and inserting ``(e)(1) Except as
provided in paragraph (2), an''; and
(2) by adding at the end the following new paragraph:
``(2) In the case of an application under subsection (c) where the
applicant has certified that the information likely to be obtained is
foreign intelligence information not concerning a United States person,
an order, or an extension of an order, under this section may be for a
period not to exceed one year.''.
SEC. 8. ACCESS TO CERTAIN BUSINESS RECORDS UNDER SECTION 215 OF THE USA
PATRIOT ACT.
(a) Establishment of Relevance Standard.--Subsection (b)(2) of
section 501 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861) is amended by striking ``to obtain'' and all that follows
and inserting ``and that the information likely to be obtained from the
tangible things is reasonably expected to be (A) foreign intelligence
information not concerning a United States person, or (B) relevant to
an ongoing investigation to protect against international terrorism or
clandestine intelligence activities.''.
(b) Clarification of Judicial Discretion.--Subsection (c)(1) of such
section is amended to read as follows:
``(c)(1) Upon an application made pursuant to this section, if the
judge finds that the application meets the requirements of subsections
(a) and (b), the judge shall enter an ex parte order as requested, or
as modified, approving the release of records.''.
(c) Authority to Disclose to Attorney.--Subsection (d) of such
section is amended to read as follows:
``(d)(1) No person shall disclose to any person (other than a
qualified person) that the United States has sought or obtained
tangible things under this section.
``(2) An order under this section shall notify the person to whom the
order is directed of the nondisclosure requirement under paragraph (1).
``(3) Any person to whom an order is directed under this section who
discloses that the United States has sought to obtain tangible things
under this section to a qualified person with respect to the order
shall inform such qualified person of the nondisclosure requirement
under paragraph (1) and that such qualified person is also subject to
such nondisclosure requirement.
``(4) A qualified person shall be subject to any nondisclosure
requirement applicable to a person to whom an order is directed under
this section in the same manner as such person.
``(5) In this subsection, the term `qualified person' means--
``(A) any person necessary to produce the tangible things
pursuant to an order under this section; or
``(B) an attorney to obtain legal advice with respect to an
order under this section.''.
(d) Judicial Review.--
(1) Petition review panel.--Section 103 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is
amended by adding at the end the following new subsection:
``(e)(1) Three judges designated under subsection (a) who reside
within 20 miles of the District of Columbia, or if all of such judges
are unavailable, other judges of the court established under subsection
(a) as may be designated by the Presiding Judge of such court (who is
designated by the Chief Justice of the United States from among the
judges of the court), shall comprise a petition review panel which
shall have jurisdiction to review petitions filed pursuant to section
501(f)(1).
``(2) Not later than 60 days after the date of the enactment of the
USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, the
court established under subsection (a) shall develop and issue
procedures for the review of petitions filed pursuant to section
501(f)(1) by the panel established under paragraph (1). Such procedures
shall provide that review of a petition shall be conducted ex parte and
in camera and shall also provide for the designation of an Acting
Presiding Judge.''.
(2) Proceedings.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is further amended by
adding at the end the following new subsection:
``(f)(1) A person receiving an order to produce any tangible thing
under this section may challenge the legality of that order by filing a
petition in the panel established by section 103(e)(1). The Presiding
Judge shall conduct an initial review of the petition. If the Presiding
Judge determines that the petition is frivolous, the Presiding Judge
shall immediately deny the petition and promptly provide a written
statement of the reasons for the determination for the record. If the
Presiding Judge determines that the petition is not frivolous, the
Presiding Judge shall immediately assign the petition to one of the
judges serving on such panel. The assigned judge shall promptly
consider the petition in accordance with procedures developed and
issued pursuant to section 103(e)(2). The judge considering the
petition may modify or set aside the order only if the judge finds that
the order does not meet the requirements of this section or is
otherwise unlawful. If the judge does not modify or set aside the
order, the judge shall immediately affirm the order and order the
recipient to comply therewith. A petition for review of a decision to
affirm, modify, or set aside an order by the United States or any
person receiving such order shall be to the court of review established
under section 103(b), which shall have jurisdiction to consider such
petitions. The court of review shall immediately provide for the record
a written statement of the reasons for its decision and, on petition of
the United States or any person receiving such order for writ of
certiorari, the record shall be transmitted under seal to the Supreme
Court, which shall have jurisdiction to review such decision.
``(2) Judicial proceedings under this subsection shall be concluded
as expeditiously as possible. The judge considering a petition filed
under this subsection shall provide for the record a written statement
of the reasons for the decision. The record of proceedings, including
petitions filed, orders granted, and statements of reasons for
decision, shall be maintained under security measures established by
the Chief Justice of the United States in consultation with the
Attorney General and the Director of National Intelligence.
``(3) All petitions under this subsection shall be filed under seal,
and the court, upon the government's request, shall review any
government submission, which may include classified information, as
well as the government's application and related materials, ex parte
and in camera.''.
SEC. 9. REPORT ON EMERGENCY DISCLOSURES UNDER SECTION 212 OF THE USA
PATRIOT ACT.
Section 2702 of title 18, United States Code, is amended by adding at
the end the following:
``(d) Report.--On an annual basis, the Attorney General shall submit
to the Committees on the Judiciary of the House and the Senate a report
containing--
``(1) the number of accounts from which the Department of
Justice has received voluntary disclosures under subsection
(b)(8); and
``(2) a summary of the basis for disclosure in those
instances where--
``(A) voluntary disclosure under subsection (b)(8)
was made to the Department of Justice; and
``(B) the investigation pertaining to those
disclosures was closed without the filing of criminal
charges.''.
SEC. 10. SPECIFICITY AND NOTIFICATION FOR ROVING SURVEILLANCE AUTHORITY
UNDER SECTION 206 OF THE USA PATRIOT ACT.
(a) Inclusion of Specific Facts in Application.--Section 105(c)(2)(B)
of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805(c)(2)(B)) is amended by striking ``where the Court finds'' and
inserting ``where the Court finds, based upon specific facts provided
in the application,''.
(b) Notification of Surveillance of New Facility or Place.--Section
105(c)(2) of such Act is amended--
(1) in subparagraph (C), by striking ``and'' at the end;
(2) in subparagraph (D), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following new subparagraph:
``(E) that, in the case of electronic surveillance
directed at a facility or place that is not known at
the time the order is issued, the applicant shall
notify a judge having jurisdiction under section 103
within 10 days after electronic surveillance begins to
be directed at a new facility or place, and such notice
shall contain a statement of the facts and
circumstances relied upon by the applicant to justify
the belief that the facility or place at which the
electronic surveillance is or was directed is being
used, or is about to be used, by the target of
electronic surveillance.''.
SEC. 11. PROHIBITION ON PLANNING TERRORIST ATTACKS ON MASS
TRANSPORTATION.
Section 1993(a) of title 18, United States Code, is amended--
(1) by striking ``or'' at the end of paragraph (7);
(2) by redesignating paragraph (8) as paragraph (9); and
(3) by inserting after paragraph (7) the following:
``(8) surveils, photographs, videotapes, diagrams, or
otherwise collects information with the intent to plan or
assist in planning any of the acts described in the paragraphs
(1) through (7); or''.
SEC. 12. ENHANCED REVIEW OF DETENTIONS.
Section 1001 of the USA PATRIOT ACT is amended by--
(1) inserting ``(A)'' after ``(1)''; and
(2) inserting after ``Department of Justice'' the following:
``, and (B) review detentions of persons under section 3144 of
title 18, United States Code, including their length,
conditions of access to counsel, frequency of access to
counsel, offense at issue, and frequency of appearance before a
grand jury''.
SEC. 13. FORFEITURE.
Section 981(a)(1)(B)(i) of title 18, United States Code, is amended
by inserting ``trafficking in nuclear, chemical, biological, or
radiological weapons technology or material, or'' after ``involves''.
SEC. 14. ADDING OFFENSES TO THE DEFINITION OF FEDERAL CRIME OF
TERRORISM.
Section 2332b(g)(5)(B)(i) of title 18, United States Code, is
amended--
(1) by inserting ``, 2339D (relating to military-type
training from a foreign terrorist organization)'' before ``, or
2340A'' ; and
(2) by inserting ``832 (relating to nuclear and weapons of
mass destruction threats),'' after ``831 (relating to nuclear
materials),''.
SEC. 15. AMENDMENTS TO SECTION 2516(1) OF TITLE 18, UNITED STATES CODE.
(a) Paragraph (c) Amendment.--Section 2516(1)(c) of title 18, United
States Code, is amended--
(1) by inserting ``section 37 (relating to violence at
international airports), section 175b (relating to biological
agents or toxins)'' after ``the following sections of this
title:'';
(2) by inserting ``section 832 (relating to nuclear and
weapons of mass destruction threats), section 842 (relating to
explosive materials), section 930 (relating to possession of
weapons in Federal facilities),'' after ``section 751 (relating
to escape),'';
(3) by inserting ``section 1114 (relating to officers and
employees of the United States), section 1116 (relating to
protection of foreign officials), sections 13611363 (relating
to damage to government buildings and communications), section
1366 (relating to destruction of an energy facility),'' after
``section 1014 (relating to loans and credit applications
generally; renewals and discounts),'';
(4) by inserting ``section 1993 (relating to terrorist
attacks against mass transportation), sections 2155 and 2156
(relating to national-defense utilities), sections 2280 and
2281 (relating to violence against maritime navigation),''
after ``section 1344 (relating to bank fraud),''; and
(5) by inserting ``section 2340A (relating to torture),''
after ``section 2321 (relating to trafficking in certain motor
vehicles or motor vehicle parts),''.
(b) Paragraph (p) Amendment.--Section 2516(1)(p) is amended by
inserting ``, section 1028A (relating to aggravated identity theft)''
after ``other documents''.
(c) Paragraph (q) Amendment.--Section 2516(1)(q) of title 18, United
States Code is amended--
(1) by inserting ``2339,'' after ``2332h,''; and
(2) by striking ``or 2339C'' and inserting ``2339C, or
2339D'' .
SEC. 16. DEFINITION OF PERIOD OF REASONABLE DELAY UNDER SECTION 213 OF
THE USA PATRIOT ACT.
Section 3103a(b)(3) of title 18, United States Code, is amended--
(1) by striking ``of its'' and inserting ``, which shall not
be more than 180 days, after its''; and
(2) by inserting ``for additional periods of not more than 90
days each'' after ``may thereafter be extended''.
Purpose and Summary
H.R. 3199, introduced by Chairman F. James Sensenbrenner,
Jr., on July 11, 2005, would reauthorize the expiring
provisions in the USA PATRIOT Act and two provisions in the
Intelligence Reform and Terrorism Prevention Act of 2004 that
would expire within the next two years, as amended. The bill
extended the sunset for 10 years on two of the provisions that
had amended the Foreign Intelligence Surveillance Act relating
to Foreign Intelligence Surveillance Court orders for roving
wiretaps and for business records.
H.R. 3199 is based on four years of extensive oversight
consisting of hearing testimony, Department of Justice
Inspector General reports, briefings, and oversight
correspondence. Since April of this year alone, this Committee
has heard testimony from 35 witnesses during 11 hearings on the
USA PATRIOT Act. That testimony and related oversight has
demonstrated that the USA PATRIOT Act has been an effective
tool against both terrorists and criminals intent on harming
innocent people, and therefore deserves to be reauthorized with
some modifications. H.R. 3199 accomplishes this objective by
reauthorizing provisions set to sunset and making some
improvements. The bill modifies the following provisions of USA
PATRIOT Act: (1) Section 203(b) to allow for notification to a
court that criminal wiretap information has been shared; (2)
section 206 to clarify when and where law enforcement is
authorized to use a multi-point or roving wiretap; (3) section
207 to further extend the maximum duration of orders for
electronic surveillance and physical searches targeted against
all agents of foreign powers who are not U.S. persons; (4)
section 212 to require an annual report to the House and Senate
Judiciary Committees by the Attorney General, which sets forth
the number of accounts subject to a section 212 disclosure and
a summary of the basis for disclosure in certain circumstances;
(5) section 215 to clarify that the information likely to be
obtained is reasonably expected to: be (A) foreign intelligence
information NOT concerning a U.S. person or (B) relevant to an
ongoing investigation to protect against international
terrorism or clandestine intelligence activities; (6) section
215 to clarify that a FISA 215 order may be challenged; (7)
section 215 to clarify that a recipient of a 215 order may
consult with a lawyer and the appropriate people necessary to
challenge and comply with the order; (8) section 215 to clarify
that the order will only be issued ``if the judge finds that
the requirements have been met;'' (9) section 215 to set up a
judicial review process that authorizes the judge to set aside
or affirm a 215 order that has been challenged. The bill makes
permanent sections 201, 202, 203 (b) and (d), 204, 207, 209,
212, 214, 217, 218, 220, 223, and 225, which were scheduled to
sunset on December 31, 2005, and extends until December 31,
2015 the sunset of sections 206 and 215. In addition, the bill
makes permanent section 6001 of the Intelligence Reform and
Terrorism Prevention Act (IRTPA), which provides an additional
definition for ``Agent of a Foreign Power,'' to cover the
``lone wolf'' under 50 U.S.C. 1801(b)(1). The legislation
repeals section 6603(g) of the IRTPA, which would sunset
section 6603, the ``Additions to Offense of Providing Material
Support to Terrorism''. Finally, H.R. 3199 would enhance
security of mass transportation; Department of Justice
Inspector General review, and Judicial and Congressional
oversight.
Background and Need for the Legislation
The terrorist attacks on the World Trade Center and the
Pentagon took more than 3,000 lives, caused billions in
economic losses, triggered U.S. military intervention in
Afghanistan to topple the Taliban regime, and led to the
passage of the USA PATRIOT Act and other anti-terrorism bills.
Another example of anti-terror legislation that enhanced law
enforcement authorities and improved information sharing was
the ``Homeland Security Act of 2002,\1\'' which created the
Department of Homeland Security. This legislation incorporates
H.R. 4598, the ``Homeland Security Information Sharing Act'' to
further improve information sharing with Federal and state and
local officials. The Homeland Security Act also updated law
enforcement authorities by including: H.R. 3482 (107th), the
``Cyber Security Enhancement Act of 2002,'' which increased
penalties for cybercrimes and cyberterrorism, and H.R. 4864
(107th), the ``Anti-Terrorism Explosives Act,'' which
strengthened penalties for the unlawful possession of explosive
materials.
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\1\ Pub. L. No. 107-296.
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To respond to terrorist threats, Congress also has passed
legislation to tighten security at America's airports,\2\ to
fundamentally reform the Immigration and Naturalization
Service,\3\ and to enhance border security.\4\ Congress also
created the National Commission on Terrorist Attacks Upon the
United States (the ``9/11 Commission''), an independent,
bipartisan commission created in 2002 to examine the
circumstances surrounding the September 11, 2001 terrorist
attacks, including preparedness for and the immediate response
to the attacks. In July 2004, the Commission issued ``The 9/11
Commission Report: Final Report of the National Commission on
Terrorists Attacks Upon the United States.'' The 9/11
Commission noted that most of the USA PATRIOT Act provisions
are ``relatively noncontroversial, updating America's
surveillance laws to reflect technological developments in a
digital age. Some executive actions that have been criticized
are unrelated to the Patriot Act. The provisions in the Act
that facilitate the sharing of information among intelligence
agencies and between law enforcement and intelligence appear,
on balance, to be beneficial. Because of concerns regarding the
shifting balance of power to the government, we think that a
full and informed debate on the Patriot Act would be healthy.''
\5\
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\2\ Air Transportation Safety and System Stabilization Act, Pub. L.
No. 107-42, 115 Stat. 230 (2001).
\3\ Barbara Jordan Immigration Reform and Accountability Act, 107th
Cong. (2002).
\4\ Enhanced Border Security and Visa Entry Reform Act of 2002,
Pub. L. No. 107-173, 116 Stat. 543 (2002).
\5\ The 9/11 Commission Report: Final Report of the National
Commission on Terrorists Attacks Upon the United States p. 394 (2004).
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In addition to these legislative initiatives, the House
Committee on the Judiciary has conducted nearly a 100 hearings
to better protect the American people against terrorist attacks
since September 11, 2001. Many of those hearings examined
legislative initiatives that were adopted as part of the
``Intelligence Reform and Terrorism Prevention Act of 2004,''
\6\ which responded to the 9/11 Commission Report and was
signed into law on December 17, 2004, and H.R. 418, the ``Real
ID Act of 2005,'' which passed the House by a roll call vote of
229 to 198.\7\
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\6\ Pub. L. No. 108-458, 118 Stat. 3638 (2004).
\7\ Roll no. 27.
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1. Congressional Response--the USA PATRIOT Act
To better equip Federal law enforcement and the
intelligence community with the resources necessary to confront
these modern threats, Chairman Sensenbrenner introduced H.R.
2975, to ``Provide Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001,'' on October 2, 2001. H.R. 2975
was reported unanimously by the Judiciary Committee. The House
and Senate combined their versions of the legislation into H.R.
3162, the ``Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001,'' (USA PATRIOT Act). This legislation incorporated
provisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism
Act,'' which increased penalties for money laundering and
financing terrorist organizations; and H.R. 3160 (107th), the
``Bioterrorism Prevention Act of 2001,'' which provided law
enforcement personnel greater resources to assess and prevent
biological attacks on American soil. The USA PATRIOT Act was
signed into law by President Bush on October 26, 2001.\8\
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\8\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in
scattered sections of 18 U.S.C. (2003)).
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The USA PATRIOT Act modernized investigative tools to
effectively fight the advanced technologies used by terrorists
and criminals. The USA PATRIOT Act also greatly improved
information sharing between law enforcement and the
intelligence community.
A. Investigative Authorities
The USA PATRIOT Act was designed to assist in the
prevention of future terrorist activities as well as in the
prevention of a broad range of criminal activity that often
furthers those activities. The law increased penalties for
Federal terrorism offenses and provided for extended post-
incarceration supervised release for persons convicted of such
offenses. The bill strengthened Federal money laundering laws,
added new terrorism offenses, updated the bioterrorism laws,
funded first responders, and modified immigration law to
increase the Federal Government's ability to prevent foreign
terrorists from entering the United States. The Act also
streamlined and updated the investigative authorities for law
enforcement and the intelligence community.
``Many of the tools the Act provides to fight terrorism
have been used for decades to fight organized crime and drug
dealers, and have been reviewed and approved by the courts. As
Sen. Joe Biden (D-DE) explained during the floor debate about
the Act, `the FBI could get a wiretap to investigate the mafia,
but they could not get one to investigate terrorists. To put it
bluntly, that was crazy! What's good for the mob should be good
for terrorists.' '' \9\
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\9\ http://www.lifeandliberty.gov/, citing the (Cong. Rec., 10/25/
01).
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Another example of an authority that was codified in the
Act is the long-standing discretionary authority of Federal
judges to grant law enforcement the authority to use ``roving
wiretaps'' to investigate ordinary crimes, including drug
offenses and racketeering, under Federal criminal law. When a
judge issues a roving wiretap order, law enforcement can apply
the wiretap to a particular suspect, rather than a particular
phone or communications device. Drug dealers often use a cell
phone, throw it away and use another cell phone, to carry out
their illegal activity. Thus, without the authority to use a
roving wiretap law enforcement would not be able to effectively
investigate these crimes.
Prior to the enactment of the USA PATRIOT Act, a Federal
judge could issue an order for a wiretap in a national security
or an intelligence investigation similar to a wiretap in a
criminal case. The law, however, failed to contain authority
similar to the criminal law that allowed a Federal judge to
issue a ``roving wiretap'' order in a national security or an
intelligence case. International terrorists and spies are just
as sophisticated as drug dealers and are trained to thwart
surveillance by rapidly changing locations and communication
devices such as cell phones. Accordingly, the USA PATRIOT Act
authorized the courts the discretion to grant agents permission
to use the same techniques in national security investigations
to track terrorists that are used in criminal cases.\10\
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\10\ http://www.lifeandliberty.gov/.
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B. Information Sharing
A lack of full, free, and timely information sharing
between Federal law enforcement and intelligence agencies had
been a problem, long before the 9/11 attacks. Prior to the 9/11
attacks, the Government had made attempts to improve
information sharing. For example, different centers, such as
the National Drug Intelligence Center, have been created to
focus on sharing information on specific issues. While these
centers helped, Government-wide improvement was still needed.
The lack of information sharing stemmed from the distinct
historical roles and cultures of law enforcement and the
intelligence community, and from certain legal restrictions.
After the 9/11 attacks, criticism increased that the
Intelligence Community, especially the CIA and FBI, failed to
share pertinent intelligence information, and as a result, had
failed to ``connect the dots'' in a way that might have
uncovered and enabled prevention of the attacks. The criticism
was twofold: First, collecting agencies had not integrated and
evaluated all the relevant information they had. Second, they
had failed to ensure that relevant information they had
collected was shared with other agencies that would need it to
prevent attacks such as those that occurred.
The Administration and the Congress took immediate action
to reduce statutory impediments to sharing appropriate
information. First, the USA PATRIOT Act,\11\ began to break
down the barriers to facilitate information sharing between
Federal law enforcement officials and the Intelligence
Community. ``The premise of the USA-Patriot Act is that
information about foreign terrorists acquired by law
enforcement agencies, including grand jury information, should
be available to intelligence agencies. Analysts would be able
to put together the larger picture of groups plotting against
U.S. interests.'' \12\
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\11\ Pub. L. No. 107-56, 115 Stat. 242.
\12\ Richard Best, Intelligence and Law Enforcement: Countering
Transnational Threats to the U.S. CRS Report #RL30252, December 3,
2001, p. 30.
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As mentioned earlier, H.R. 4598, the ``Homeland Security
Information Sharing Act'' continued the effort to break down
barriers by requiring the President to create procedures to
strip out classified information so that state and local
officials may receive relevant information without clearances.
H.R. 4598 also incorporated H.R. 3285, the ``Federal-Local
Information Sharing Partnership Act of 2001,'' to remove the
barriers for state and local officials to share law enforcement
and intelligence information with Federal officials. H.R. 4598
was added to the Homeland Security Act, which became Public Law
No. 107-296.
2. Implementation and Use of the USA PATRIOT Act
Since enactment of the USA PATRIOT Act, the Department of
Justice has used many of the tools authorized in the Act in a
comprehensive campaign to detect and prosecute those who have
committed, or seek to commit, terrorist crimes. For example, as
of the fall of 2004, the Department of Justice has conducted
terrorism investigations that have resulted in the charging of
310 defendants with criminal offenses, of whom 179 have already
been convicted. These investigations have led to the discovery
and disruption of over 150 terrorist cells. In addition, the
tools provided by the USA PATRIOT Act have enabled the Federal
Government to remove from the United States over 515
individuals who were linked to the September 11th
investigation. The Federal Government has also been able to
secure at least 23 convictions or guilty pleas as the result of
70 terrorist financing investigations. Importantly, these
examples, and all other activities conducted under the
authorities of the USA PATRIOT Act, have occurred without a
single substantiated allegation of civil liberties violations
on the part of Department of Justice employees.\13\
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\13\ As of the September 13, 2004 Report Congress on the
Implementation of Section 1001 of the USA PATRIOT Act, only one
allegation of civil liberties violations may be related to the use of a
USA PATRIOT Act provision, and the investigations relating to this
allegation are still underway.
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A. Oversight Hearings during the 109th Congress
During the 109th Congress, the Committee on the Judiciary
held 2 Full Committee and 8 Subcommittee oversight hearing on
all of the provisions of USA PATRIOT Act that will expire on
December 31, 2005 and several that are not subject to the
sunset.
FULL COMMITTEE HEARINGS
1. May 6, 2005, Hearing with Attorney General Gonzales
On May 6, 2005, Attorney General Gonzales testified before
the Full Committee on the Judiciary. That hearing focused on
the use of the law enforcement authorities granted under the
USA PATRIOT Act; whether these tools have, thus far, proved
useful to the Government's efforts in fighting terrorism;
whether existing safeguards have been effective in preventing
civil liberties violations; and whether modifications to the
Act are needed.
2. June 8, 2005, Hearing with Deputy Attorney General James B. Comey
On Wednesday, June 8, 2005, at 10:00 a.m., the Committee on
the Judiciary held its 11th oversight hearing on the
Reauthorization of the USA PATRIOT Act with Deputy Attorney
General James B. Comey testifying on the need to Reauthorize
the USA PATRIOT Act provisions set to expire on December 31,
2005. This hearing followed the 10 subcommittee hearings and
provided Members and the Department of Justice the opportunity
to address anyunanswered questions regarding the USA PATRIOT
Act.
3. June 10, 2005, Hearing continuation of June 8, 2005
In accordance with House Rule XI, section 2 (J)(1),
additional witnesses designated by the minority were called to
testify on the subject of the ``Reauthorization of the USA
PATRIOT Act,'' as an extension (or a continuation) of the
Committee's June 8, 2005 hearing. The witnesses were: Carlina
Tapia-Ruano, American Immigration Lawyers Association; Dr.
James J. Zogby, Arab American Institute; Deborah Pearlstein,
U.S. Law and Security Program; and Chip Pitts, Amnesty
International USA.
SUBCOMMITTEE HEARINGS
1. April 19, 2005, Hearing on Sections 203 (b) and (d) of the USA
PATRIOT Act and Their Effect on Information Sharing
The Subcommittee on Crime, Terrorism, and Homeland Security
of the Committee on the Judiciary held a hearing on sections
203 (b) and (d) that addressed information sharing. These
sections responded to the need to improve information sharing.
Four witnesses--Mr. Barry Sabin, Chief of the Counterterrorism
Section of the Criminal Division of the Department of Justice;
Ms. Maureen Baginski, Executive Assistant Director of the FBI
for Intelligence; Congressman Michael McCaul; and Timothy
Edgar, the National Security Policy Counsel for the American
Civil Liberties Union--testified.
Specifically, section 203 facilitates effective sharing of
information collected through the use of criminal wiretaps,
grand juries, and other criminal investigations, with Executive
Branch officials. To protect privacy, the USA PATRIOT Act: (1)
limits such disclosures to foreign intelligence and
counterintelligence information, as defined by statute; (2)
restricts disclosure to officials with a need to know in
performance of official duties; and (3) retains the limitations
on public or other unauthorized disclosure. Prior to passage of
the USA PATRIOT Act, the law hampered law enforcement from
sharing information with or receiving information from other
government agencies outside of law enforcement that might
nevertheless relate to terrorist activities or national
security.
Sec. 203(b) deals with information obtained through a
criminal wiretap. The section amended section 2517 of title 18
to allow law enforcement officials to share foreign
intelligence or counterintelligence (as defined in section 3 of
the National Security Act of 1947 (50 U.S.C. 401a)), or foreign
intelligence information (as defined in subsection (19) of
section 2510 of this title) obtained through a criminal wiretap
with law enforcement, intelligence, protective, immigration,
national defense, or national security personnel for use only
as necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of
such information. This language was similar to section 103 of
H.R. 2975 that passed the House Judiciary Committee unanimously
in October 2001.
Sec. 203(d) addresses information obtained through a
criminal investigation. This section permits law enforcement
officials to share foreign intelligence or counterintelligence
(as defined in section 3 of the National Security Act of 1947
(50 U.S.C. 401a)), or foreign intelligence information (as
defined in subsection (19) of section 2510 of this title)
obtained through a criminal investigation, for use only as
necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of
such information. This language was similar to section 154 of
H.R. 2975 that passed the House Judiciary Committee unanimously
in October 2001.
2. April 21, 2005, Hearing on--Crime, Terrorism, and the Age of
Technology--(Section 209: Seizure of Voice-Mail Messages
Pursuant to Warrants; Section 217: Interception of Computer
Trespasser Communications; and Section 220: Nationwide Service
of Search Warrants for Electronic Evidence)
The Subcommittee on Crime, Terrorism, and Homeland Security
held a hearing on section 209, 217, and 220 of the USA PATRIOT
Act. Four witnesses--Laura Parsky, Deputy Assistant Attorney
General of the Criminal Division, U.S. Department of Justice;
Steven M. Martinez, Deputy Assistant Director of the Cyber
Division, Federal Bureau of Investigation; James X. Dempsey,
Executive Director of the Center for Democracy and Technology;
and Peter Swire, Professor of Law, Mortiz College of Law, the
Ohio State University--testified.
In 1986, Congress enacted the Electronic Communications
Privacy Act (ECPA) to update the 1968 Wiretap Act, recognizing
that emerging technologies--such as electronic mail and voice
mail--had rendered the 1968 statute outdated and inadequate.
These 1986 modifications made the criminal code ``technology
neutral'' to address future telecommunications technologies.
``Technology neutral'' means law enforcement investigative
authorities remain the same regardless of the technology used
by the criminal to facilitate illegal activity. Thus, law
enforcement uses the same procedures to seek a court order for
a wiretap of a computer or a phone used by the criminal.
As expected, cyber technology has advanced rapidly. As a
result, people communicate quickly and effectively.
Unfortunately, technology has also facilitated crime and
terrorism.
Understanding these problems, the USA PATRIOT Act updated
criminal law to address these new challenges. These updates
also were designed to help law enforcement assess whether
unlawful conduct is the result of criminal activity or
terrorist activity and to respond appropriately. Some of these
provisions are set to expire on December 31, 2005. The April
21, 2005 hearing covered three of those provisions: Sections
209, 217, and 220.
Sec. 209. Seizure of Voice-Mail Messages Pursuant to
Warrants. Section 209 amended 18 U.S.C. Sec. 2703 (a) and (b)
by adding language to cover stored wire communications--such as
a voice mail. Section 209 updated the law to clarify that the
criminal code remains technology-neutral. Section 209 clarified
that stored voice mail is, in fact, a stored communication, and
therefore is covered by 18 U.S.C. Sec. 2703. This language is
similar to section 102 of H.R. 2975 that passed the House
Judiciary Committee unanimously.
Sec. 217. Interception of Computer Trespasser
Communications. The courts have long recognized that providers
of communications services possess a ``fundamental right to
take reasonable measures to protect themselves and their
properties against the illegal acts of a trespasser.'' Bubis v.
United States, 384 F.2d 643, 648 (9th Cir. 1967). Computer
owners, however, often lack the expertise, equipment, or
financial resources required to monitor attacks, and thus had
no way to exercise their rights to protect themselves from
unauthorized attackers--who could be terrorists or criminals
engaged in attacking critical infrastructure, or the economy.
Prior to the enactment of the USA PATRIOT Act, the law was
unclear as to whether a victim of computer trespassing was
allowed to request law enforcement assistance in monitoring
unauthorized attacks as they occur.
These attacks come in many forms that cost companies and
citizens millions of dollars and endanger public safety. For
instance, denial-of-service attacks, where the objective of the
attack is to disable a computer system, can shut down
businesses or emergency responders or national security
centers. This type of attack causes the target site's servers
to run out of memory, and become incapable of responding to the
queries of legitimate customers or users. The victims of these
computer trespassers should be able to authorize law
enforcement to intercept the trespassers' communications,
similar to a store owner who authorizes the police to stop an
intruder. To correct this problem, and help to protect national
security, section 217 of the Act amended the wiretap statute to
allow victims of computer attacks to authorize persons ``acting
under color of law'' to monitor trespassers on their computer
systems in a narrow class of cases.
Sec. 220. Nationwide Service of Search Warrants for
Electronic Evidence. Prior to the enactment of the USA PATRIOT
Act, Rule of the Federal Rules of Criminal Procedure of
Criminal Procedure 41 required that the ``warrant'' be obtained
``within the district'' where the property to be searched is
located. An investigator, for example, located in Boston who is
investigating a suspected terrorist in that city, might have to
seek a suspect's electronic e-mail from an Internet service
provider (ISP) account located in California. The investigator
would then need to coordinate with agents, prosecutors, and
judges in the district in California where the ISP is located
to obtain a warrant to search. Time delays caused by the need
to coordinate with numerous parties could be devastating to an
investigation, especially where additional criminal or
terrorist acts are planned.
Section 220 of the Act amended 18 U.S.C. Sec. 2703 to
authorize the court with jurisdiction over the investigation to
issue the warrant directly, without requiring the intervention
of its counterpart in the district where the ISP is located.
Before and after the USA PATRIOT Act, 18 U.S.C. Sec. 2703(a)
requires a search warrant to compel service providers to
disclose unopened e-mails. The USA PATRIOT Act did not affect
the requirement nor the probable cause standard for a search
warrant,\14\ but rather addresses investigative delays caused
by the cross-jurisdictional nature of the Internet. This
language is similar to section 108 of H.R. 2975 that passed the
House Judiciary Committee unanimously.
---------------------------------------------------------------------------
\14\ The government must receive court authorization through a
search warrant to search or seize property or a person, with limited
exceptions. For a search warrant to be issued, the government must
provide sworn affidavit to the magistrate that grounds exists or there
is probable cause to believe ground exist--i.e., a crime is or is about
to be committed.
---------------------------------------------------------------------------
3. April 26, 2005 Hearing--Have Sections 204, 207, 214 and 225 of the
USA PATRIOT Act, and Sections 6001 and 6002 of the Intelligence
Reform and Terrorism Prevention Act of 2004, Improved FISA
Investigations?
On Tuesday, April 26, 2005, the Subcommittee held a hearing
to examine sections 204, 207, 214, and 225 of the USA PATRIOT
Act, and sections 6001 and 6002 of the Intelligence Reform and
Terrorism Prevention Act of 2004. Three witnesses--the
Honorable Mary Beth Buchanan, United States Attorney for the
Western District of Pennsylvania; James Baker, Office for
Intelligence Policy and Review, U.S. Department of Justice; and
Suzanne Spaulding, Managing Director, the Harbour Group, LLC--
testified.
Sec. 204. Clarification of Intelligence Exceptions from
Limitations on Interception and Disclosure of Wire, Oral, and
Electronic Communications (18 U.S.C. 2511(2)(f)). This section
amended section 2511(2)(f) of the Federal criminal code, which
provided that Federal criminal law relating to law enforcement
electronic surveillance (chapter 119, title 18) and access to
stored communications and communications transactions records
(chapter 121, title 18) did not affect the use of the Foreign
Intelligence Surveillance Act (FISA) for intelligence purposes.
Section 204 is a technical clarification amendment, which added
that chapter 206 of title 18 is also covered by section
2511(2)(f). Thus, Federal criminal law relating to the use of
pen registers and trap and trace devices under chapter 206 did
not affect the use of FISA for intelligence purposes.
Sec. 207. Duration of FISA Surveillance of Non-United
States Persons Who Are Agents of a Foreign Power. Prior to
enactment of the USA PATRIOT Act, the government had 90 days to
carry out surveillance under a FISA court order and 45 days to
conduct a physical search under FISA, before seeking an
extension. Because it often takes longer than these established
periods to get on the premises or to conduct electronic
surveillance and the delay in reapplying for an extension or
new order posed a threat to national security, this provision
added 30 days to the authorized period for surveillance from 90
days to 120 days. It also extended the period for physical
searches from 45 days to 90 days.
Sec. 214. Pen Register and Trap and Trace Authority Under
FISA. Section 214 of the Act amends 50 U.S.C. Sec. 1842
(Section 402 of the Foreign Intelligence Surveillance Act of
1978 (FISA)). Section 1842 is the pen register and trap and
trace provision in the FISA that is modeled after Federal
criminal law provisions (18 U.S.C. Sec. 3121 et. seq.). A pen
register gathers out-going telephone or Internet-dialed numbers
and a trap and trace gathers incoming numbers. This is the
least intrusive method of electronic surveillance. Section 214
amends FISA (the pen register and trap and trace provisions) to
mirror similar provisions that currently exist in criminal law
(18 U.S.C. Sec. 3121 et. seq.). Prior to the enactment of the
USA PATRIOT Act, the ``pen register and trap and trace''
provisions of FISA went beyond the criminal law requirement of
certification of relevance, and required the Government to
provide information that demonstrated that the communication
instrument (e.g., a telephone line) has been or was about to be
used to contact a ``foreign power'' or agent of a foreign
power. This was a greater burden than exists in even a minor
criminal investigation.
Section 214 clarifies that an application for pen register
and trap and trace authority under FISA will be the same as the
pen register and trap and trace authority defined in the
criminal law. It requires the attorney for the government to
certify to the court that the information sought is relevant to
an ongoing FISA investigation. The statutory burden under FISA
of having to show that the telephone line has been, or is about
to be used, to contact a foreign power or terrorist is
eliminated to conform to the existing and less burdensome
criminal standards. The attorney for the government still must
certify the information sought is relevant to an ongoing FISA
investigation, which continues to be directed at an agent of a
foreign power. This section codifies lawfulness of court
authorized pen register and trap and trace device use for non-
content communications over telecommunication technology other
than by telephone.\15\ Section 214 of the Act is substantively
similar to section 155 of H.R. 2974, the House version that
passed the Judiciary Committee unanimously. Section 214
includes protections for U.S. persons, which prohibit the
investigation from being conducted based solely on activities
protected by the First Amendment.
---------------------------------------------------------------------------
\15\ 50 U.S.C. 1842.
---------------------------------------------------------------------------
Sec. 225. Immunity for Compliance with FISA Wiretap. While
Federal criminal wiretap law immunizes those who assist law
enforcement in the execution of a criminal wiretap interception
order, 18 U.S.C. 2511(2)(a), this section provides immunity to
anyone who complies with a FISA surveillance (wiretap) order.
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act. Individual Terrorists as Agents of Foreign
Powers. This section amends the definition of ``Agent of a
Foreign Power'' under section 50 U.S.C. Sec. 1801(b)(1) (the
Foreign Intelligence Surveillance Act of 1978) by adding new
subparagraph C. Section 1801(b)(1) defined ``Agent of a foreign
power'' for any person other than a United States person, who--
(A) acts in the United States as an officer or
employee of a foreign power, or as a member of a
foreign power as defined in subsection (a)(4) of this
section;
(B) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities in the
United States contrary to the interests of the United
States, when the circumstances of such person's
presence in the United States indicate that such person
may engage in such activities in the United States, or
when such person knowingly aids or abets any person in
the conduct of such activities or knowingly conspires
with any person to engage in such activities;
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act added new subparagraph C to the
definition, which states ``Agent of a foreign power''
for any person other than a United States person,
includes a person who ``engages in international
terrorism or activities in preparation thereof.'' This
new definition is to reach ``lone wolf'' terrorists who
are non-U.S. persons who engage in international
terrorism, regardless of whether they are affiliated
with an international terrorist group. To address
concerns about the provision, the USA PATRIOT Act
sunset applies and, had H.R. 3199 not removed the
sunset provision, the definition would have expired on
December 31, 2005.
When FISA was enacted in the 1970s, terrorists
usually were members of distinct, hierarchical terror
groups. Today, the ``lone wolfs'' often are not formal
members of any group. Instead, they are part of a
movement, such as a Jihad Against America, and
occasionally act alone. FISA authority was updated to
reflect this new threat.
It should be noted that this section does not change
the requirement for a judicial finding of probable
cause that the target is an agent of a foreign power.
See section 1805(a)(3) and (b). The new definition
requires that for a non-U.S. person to be deemed an
agent of a foreign power, that person must be engaged
in or preparing to engage in international terrorism.
Thus, under the probable cause requirement currently in
law and the new definition in this section, before a
judge can issue a FISA order for surveillance there
must be a showing of probable cause that the person is
engaged or preparing to engage in international
terrorism.
Section 6002 of the Intelligence Reform and Terrorism
Prevention Act. Additional Semiannual Reporting Requirements
Under the Foreign Intelligence Surveillance Act. The section
also includes additional reporting requirements to the House
and Senate Judiciary Committees regarding the use of FISA.
4. April 28, 2005, Hearing--Have Sections 206 and 215 Improved FISA
Investigations?
On Thursday, April 28, 2005, the Subcommittee held a
hearing to examine sections 206 and 215 of the USA PATRIOT Act.
Four witnesses--the Honorable Kenneth L. Wainstein, U.S.
Attorney for the District of Columbia; James Baker, Office for
Intelligence Policy and Review, U.S. Department of Justice;
Robert Khuzami, former Assistant United States Attorney in the
United States Attorney's Office for the Southern District of
New York; and Greg Nojeim, the Associate Director and Chief
Legislative Counsel of the American Civil Liberties Union's
Washington National Office--testified.
Sec. 206. Roving surveillance authority under the Foreign
Intelligence Surveillance Act of 1978. This section amends
105(c)(2)(B) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805(c)(2)(B)) to update the authority to allow
a court to authorize a ``roving wiretap'' ``in circumstances
where the Court finds that the actions of the target of the
application may have the effect of thwarting the identification
of a specified person,'' that a common carrier, landlord,
custodian, or other person not specified in the Court's order
be required to furnish the applicant information and technical
assistance necessary to accomplish electronic surveillance in a
manner that will protect its secrecy and produce a minimum of
interference with the services that such person is providing to
the target of electronic surveillance.'' This language was the
same as the language in section 152 of H.R. 2975 that passed
the House Judiciary Committee unanimously in the 107th
Congress.
Federal judges have had the discretion for decades to grant
law enforcement the authority to use ``roving wiretaps'' to
investigate ordinary crimes, including drug offenses and
racketeering, under Federal criminal law. When a judge issues a
roving wiretap order, law enforcement can apply the wiretap to
a particular suspect, rather than to a particular phone or
communications device.
While international terrorists and spies are just as
sophisticated as drug dealers and are trained to thwart
surveillance by rapidly changing locations and communication
devices such as cell phones, the law prior to the USA PATRIOT
Act did not contain authority similar to the criminal law that
allowed a Federal judge to issue a ``roving wiretap'' order in
a national security or intelligence case. As a result, the
Government had to return to the FISA court for an order that
named the new carrier, landlord, etc., before effecting
surveillance each time the terrorist or spy threw away his or
her cell phone and used a different cell phone. Under section
206 of the USA PATRIOT Act, the FBI presents the newly
discovered carrier, landlord, custodian, or other person with a
generic order issued by the court, and the FBI can then effect
FISA coverage as soon as it is technically feasible.
Sec. 215. Access to Records and Other Items Under the
Foreign Intelligence Surveillance Act. Prior and subsequent to
enactment of the USA PATRIOT Act, law enforcement could obtain
records from all manner of businesses through grand jury-issued
subpoenas. Targets of grand jury investigations do not have
standing to challenge a grand jury subpoena directed at a third
party. This access includes libraries and bookstores, for
records relevant to criminal inquiries. For example, in the
1997 Gianni Versace murder case, a Florida grand jury
subpoenaed records from public libraries in Miami Beach. In the
1990 Zodiac gunman investigation, a grand jury in Queens, New
York, subpoenaed records from the library at Fifth Avenue and
42d Street in Manhattan. Investigators believed that the gunman
was inspired by a Scottish occult poet, and wanted to learn who
had checked out his books. Section 215 of the USA PATRIOT Act
created similar authority, but with more stringent
requirements. Section 215 provides the FISA court discretion to
issue an order for business records related to ``international
terrorism and clandestine intelligence activities.'' These
judicial orders conceivably could be issued to bookstores or
libraries, but section 215 does not single them out. Section
215 has a very narrow scope that can only be used: (1) ``to
obtain foreign intelligence information not concerning a United
States person''; or (2) ``to protect against international
terrorism or clandestine intelligence activities.'' 50 U.S.C.
Sec. 1861(b)(2).
FBI agents cannot obtain records under section 215
unless they receive a court order. Grand jury
subpoenas, by contrast, do not require judicial
approval. Agents cannot use section 215 to unilaterally
compel libraries or any other entity to turn over their
records. Agents must obtain such documents only by
appearing before the FISA court and convincing the
court that these business records are needed. See 50
U.S.C. Sec. 1861(b). Section 215 goes to great lengths
to preserve the First Amendment rights of libraries,
their patrons, and other affected entities. It
expressly provides that the FBI cannot conduct
investigations ``of a United States person solely on
the basis of activities protected by the first
amendment to the Constitution of the United States.''
50 U.S.C. Sec. 1861(a)(2).
Section 215 provides for thorough congressional
oversight. Every six months, the Attorney General is
required to ``fully inform'' Congress on the number of
times agents have sought a court order under section
215, as well as the number of times such requests were
granted, modified, or denied. See 50 U.S.C. Sec. 1862.
On April 28, 2005, the United States Attorney for the
District of Columbia testified that some of the 9/11 hijackers
used libraries in the United States. He stated:
Investigators have received information that
individuals believed to be 9/11 hijackers Wail
Alshehri, Waleed Alshehri, and Marwan Al-Shehhi visited
the Del Ray Public Library in Del Ray Beach, Florida.
Wail Alshehri and Waleed Alshehri entered the library
one afternoon in July of 2001, and asked to use the
library's computers to access the Internet. After about
an hour a third man, Marwan Al-Shehhi, joined the two.
Waleed and Wail Alshehri were hijackers aboard American
Airlines Flight 11, while Al-Shehhi was the pilot who
took control of United Airlines Flight 175, both of
those flights crashed into the World Trade Center on
September 11th. * * * In addition, investigators
tracing the activities of the hijackers determined that
on four occasions in August of 2001, individuals using
Internet accounts registered to Nawaf Alhazmi and
Khalid Almihdhar, 9/11 hijackers, used public access
computers in the library of a state college in New
Jersey. The computers in the library were used to
review and order airline tickets on an Internet travel
reservations site. Alhazmi and Almihdhar were hijackers
aboard American Airlines Flight 77, which took off from
Dulles Airport and crashed into the Pentagon. The last
documented visit to the library occurred on August
30th, 2001. On that occasion, records indicate that a
person using Alhazmi's account used the library's
computer to review September 11th reservations that had
been previously booked.''
On April 6, 2005 the Attorney General testified before the
House Committee on the Judiciary and stated that the FISA court
has granted the Department's request for a 215 order 35 times
as of March 30, 2005. He went on to state that the Department
has not sought a section 215 order to obtain library or book
store records, medical records, or gun sale records. He also
explained that the provision to date has been used only to
obtain driver's license records, public accommodation records,
apartment leasing records, credit card records, and subscriber
information, such as names and addresses, for telephone numbers
captured through court-authorized pen-register devices.
5. April 28, 2005, Hearing--Section 218 of the USA PATRIOT Act--If it
Expires Will the ``Wall'' Return?
On Thursday, April 28, 2005, the Subcommittee held a
hearing, which focused on section 218 of the USA PATRIOT Act.
Some have argued that Section 218 contributed to lowering the
``Wall,'' and is set to expire on December 31, 2005. The
``Wall'' is a metaphorical term that described the legal and
administrative constraints created to separate the operations
of law enforcement and the intelligence community. Four
witnesses--the Honorable Patrick Fitzgerald, U.S. Attorney for
the Northern District of Illinois; David Kris, former Associate
Deputy Attorney General for the Department of Justice; Kate
Martin, Director of the Center for National Security Studies;
and Peter Swire, Professor of Law at Ohio State University--
testified.
Section 218 amended 50 U.S.C. Sec. 1804(a)(7)(B) and
1823(a)(7)(B) (the Foreign Intelligence Surveillance Act) to
improve information sharing between law enforcement and the
intelligence community. The Foreign Intelligence Surveillance
Act limited surveillance and physical search orders to
instances where authorities certified that ``the purpose'' of
the order was for foreign intelligence gathering; subsequent
case law raised a question of whether it was sufficient to meet
``the purpose'' requirement that foreign intelligence gathering
was ``the primary purpose'' or whether ``the purpose''
requirement could be satisfied perhaps when a criminal
investigation was not the primary purpose, 743 F.2d 59; 952
F.2d 565. Section 218 makes it clear that foreign intelligence
gathering must be ``a significant'' reason for a FISA
application, but need not be the primary purpose, as the courts
had interpreted the law to mean.\16\ Section 218 of the USA
PATRIOT Act has helped to lower the ``Wall'' that prevented
sharing of information between law enforcement and the
intelligence community. This section is subject to the December
31, 2005 sunset.
---------------------------------------------------------------------------
\16\ In re: Sealed Case No. 02-001, FIS Ct. Rev., No. 02-001, 11/
18/02, reversing 71 CrL 615.
---------------------------------------------------------------------------
6. May 3, 2005, Oversight Hearing on Sections 201, 202, 213, and 223 of
the USA PATRIOT Act and Their Effect on Law Enforcement
Surveillance
On Tuesday, May 3, 2005, the Subcommittee on Crime,
Terrorism, and Homeland Security for the Committee held a
hearing on the USA PATRIOT Act. The hearing focused on the
effect of sections 201, 202, 213, and 223 on law enforcement
surveillance. Although section 213 does not sunset, the
Committee reviewed this section of the USA PATRIOT Act to
accommodate a request of the Minority. Section 213 covers
delayed notice search warrants. Four witnesses--the Honorable
Michael J. Sullivan, U.S. Attorney for the District of
Massachusetts; Chuck Rosenberg, Chief of Staff to the Deputy
Attorney General; Heather MacDonald, John M. Olin Fellow at the
Manhattan Institute; and the Honorable Bob Barr, former
Representative of Georgia's Seventh District--testified.
This hearing examined sections 201, 202, and 203 of the USA
PATRIOT Act that relate to criminal wiretaps and section 213
that relates to when notice is provided for certain criminal
search warrants. Sections 201, 202, and 223 expire on December
31, 2005. Section 213 does not sunset.
A. The Wiretap Provisions Set To Expire
1. Criminal Wiretap Authority Before the USA PATRIOT Act
``Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. Sec. Sec. 2510-2522 (1994 & Supp. II
1996), requires the government, unless otherwise permitted, to
obtain an order of a court before conducting electronic
surveillance. The government is permitted to seek such orders
only in connection with the investigation of the criminal
offenses enumerated in section 2516 of title 18.'' \17\
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\17\ October 17, 2000, Memorandum for the Counsel, Office of
Intelligence Policy and Review, U.S. DOJ.
---------------------------------------------------------------------------
For Federal investigations, section 2516 distinguishes
between wire (i.e., telephone) and oral (i.e., face-to-face
conversation) communications, and electronic communications
(i.e., conversation using a computer). The USA PATRIOT Act did
not change these distinctions.
For wire and oral communications, section
2516(1) allows designated senior officials in the
Department of Justice to authorize an application for a
court order to approve interception of wire and oral
communications where the interception may provide
evidence of certain Federal offenses known as ``wiretap
predicates.'' Wiretap predicates are enumerated crimes
for which Congress has authorized law enforcement to
use a wiretap over a wire or when oral communications
occur.
For wiretapping electronic communications,
Congress authorized Federal investigators, under 18
U.S.C. Sec. 2516(3), to apply for a court order for
interception of electronic communications where the
interception may provide evidence of any Federal
felony.
2. Wiretap Authority as amended by the USA PATRIOT Act
The USA PATRIOT Act added to the wiretap predicates under
sections 201 and 202, and added safeguards under section 223
designed to prohibit the unauthorized disclosure of information
obtained under the Government's updated surveillance authority.
Sec. 201. Terrorism as a predicate act for authorization of
wiretaps. This section added new ``wiretap predicates'' under
section 2516 of title 18 of the Federal criminal code that
relate to crimes of terrorism. Section 201 provides the courts
discretion to grant a wiretap for the interception of wire,
oral, or electronic communications in the investigation of: (1)
possible crimes relating to chemical weapons under 18 U.S.C.
Sec. 229 and (2) possible crimes relating to terrorism under 18
U.S.C. Sec. Sec. 2332, 2332a, 2332b, 2332d, 2339A, or 2339B.
While some crimes involving terrorism were already wiretap
predicates, others were not. The USA PATRIOT Act closed the gap
with respect to the use of this key investigative tool that
significantly enhances law enforcement ability to prevent a
terrorist attack and prosecute crimes connected with it. Such
authority already existed for a number of other less serious
crimes, such as trafficking automobile parts. Prior to the
enactment of the USA PATRIOT Act, law enforcement could already
conduct wiretaps on electronic communications under section
2516(3) for these felonies. The USA PATRIOT Act changed the law
to now permit wiretaps on wire and oral communications as well.
Sec. 202. Authority to intercept wire, oral, and electronic
communications relating to computer fraud and abuse. This
section adds a new ``wiretap predicate'' under section 2516 of
title 18 of the Federal criminal code for serious computer
hacking offenses, including cyberterrorism. Specifically, the
wiretap predicate is for crimes under section 1030 of title 18
when the violation is a felony that relates to computer fraud
and abuse. Prior to the USA PATRIOT Act, law enforcement could
already conduct wiretaps on electronic communications under
section 2516(3) for such felonies. The USA PATRIOT Act changed
the law to now also permit wiretaps on wire and oral
communications.
3. Wiretap Authority that Remained Unchanged by the USA
PATRIOT Act
Sections 201 and 202 of the USA PATRIOT Act in no way
change the strict limitations on how wiretaps may be used.
Congress enacted Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 \18\ that outlines what is and is not
permissible with regard to wiretapping and electronic
eavesdropping.\19\ Title III restrictions go beyond Fourth
Amendment constitutional protections and include a statutory
suppression rule to exclude evidence that was collected in
violation of Title III.\20\ Except under limited circumstances,
it is unlawful to intercept oral, wire, and electronic
communications.\21\ Accordingly, under the Act, Federal and
state law enforcement may only use wiretaps under strict
limitations.\22\ Congress created these procedures to allow
limited law enforcement access to private communications and
communication records for investigations consistent with Fourth
Amendment rights. Title 18 U.S.C. Sec. 2518 sets strict
procedures for the use of a wiretap. Section 2518(1) requires
the application to be made under written oath or affirmation to
a judge of competent jurisdiction. Section 2518(1)(b) requires
that the application set forth, among other things, ``a full
and complete statement of the facts and circumstances relied
upon by the applicant, to justify his belief that an order
should be issued. . . .'' These facts should include, among
other things, the ``details as to the particular offense that
has been, is being, or is about to be committed'' and ``the
identity of the person, if known, committing the offense and
whose communications are to be intercepted.'' \23\ Section
2518(3) also includes requirements that for the judge to issue
a wiretap order the judge must believe (1) there is probable
cause for belief that an individual is committing, has
committed, or is about to commit a particular offense
enumerated in section 2516 of [title 18]; (2) there is probable
cause for belief that particular communications concerning that
offense will be obtained through such interception; and (3)
normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried or to
be too dangerous.\24\ To further protect privacy, law
enforcement is required ``to minimize the interception of
communications not otherwise subject to interception [that is,
noncriminal conversations] under this chapter, and must
terminate upon attainment of the authorized objective.'' \25\
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\18\ Omnibus Crime Control and Safe Streets Act, 87 Stat. 197
(1968)(codified as amended at 18 U.S.C. Sec. Sec. 2510-2520 (1970).
\19\ Charles Doyle & Gina Stevens, Congressional Research Service,
Library of Congress, Privacy: An Overview of Federal Statutes Governing
Wiretapping and Electronic Eavesdropping, at 6 (2001).
\20\ 87 Stat. 197, 18 U.S.C. Sec. Sec. 2510-2520 (1970 ed.).
\21\ 18 U.S.C. Sec. 2511.
\22\ 18 U.S.C. Sec. 2518.
\23\ 18 U.S.C. Sec. 2518(1)(b).
\24\ 18 U.S.C. Sec. 2518 (emphasis added).
\25\ 18 U.S.C. Sec. 2518(5).
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Sec. 223. Civil Liability for Certain Unauthorized
Disclosures. This section is similar to section 161 of H.R.
2975 that passed the House Judiciary Committee unanimously.
Section 223 includes safeguards designed to prevent the
unauthorized disclosure of information obtained under the
Government's updated surveillance authority, by amending the
criminal code to provide for administrative discipline of
Federal officers or employees, as well as by allowing for civil
actions to be brought against the United States for damages by
any person aggrieved by such disclosures.
B. Delayed Notice
1. Pre-existing Authority for Delayed Notice
Contrary to reports, the USA PATRIOT Act did not create
delayed notice search warrants. Delayed notice search warrants
have been used for decades prior to enactment of the USA
PATRIOT Act. In 1979, the U.S. Supreme Court expressly held in
Dalia v. United States that the Fourth Amendment does not
require law enforcement to give immediate notice of the
execution of a search warrant.\26\ The Department of Justice
states that three Federal Courts of Appeals had considered the
constitutionality of delayed-notice search warrants since 1979
and upheld their constitutionality.\27\
---------------------------------------------------------------------------
\26\ See Dalia v. United States, 441 U.S. 238 (1979); see also Katz
v. United States, 389 U.S. 347 (1967).
\27\ April 4, 2005 U.S. Department of Justice letter to Senator
Spector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th
Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990);
United States v. Simons, 206 F.3d 392 (4th Cir. 2000).
---------------------------------------------------------------------------
2. What Delayed Notice Means
A delayed notice search warrant simply means that a court
has expressly authorized investigators to delay notifying a
suspect that a search warrant has been executed (i.e., a court-
ordered search has occurred). The search warrant is the same,
regardless of when the suspect receives notice. Thus, before a
search warrant is issued, whether notice is delayed or not, a
Federal judge must find that there is probable cause to believe
the property to be searched or seized constitutes evidence of a
criminal offense.
3. Section 213 Creates a Uniform Nationwide Standard for a
Court To Authorize Delayed Notice
Congress included section 213 in the USA PATRIOT Act to
create a uniform nationwide standard for the issuance of these
warrants. Under section 213 there are limited circumstances
when a court may delay notice. These circumstances are the same
predicate circumstances permitted in an application for
delaying notice in a search warrant for stored communications
under section 2705(a)(2) of title 18, which predated the USA
PATRIOT Act. For a court to permit a delay in the notice of a
search of a suspect's property, the investigator or prosecutor
must show that there is reasonable cause to believe that if the
suspect is notified at the same time as the search one of the
following situations may occur:
Notification would endanger the life or
physical safety of an individual;
Notification would cause flight from
prosecution;
Notification would result in destruction of,
or tampering with, evidence;
Notification would result in intimidation of
potential witnesses; or
Notification would cause serious jeopardy to
an investigation or unduly delay a trial.
4. Notification Required Within a Reasonable Period of Time
The subject of the search must be notified within a
reasonable period of time as determined by the court. Congress
retained discretion for the courts to review the facts and
determine what a reasonable period time is to delay the notice,
as that is necessarily dependent upon the facts of each case.
According to the Department of Justice, the shortest period of
time for which the Government has requested delayed-notice for
a search warrant is 7 days and the longest is 180 days. This
figure is from a survey of the 94 U.S. Attorneys' Offices for a
period between April 1, 2003, and January 31, 2005.
In an April 4, 2005, letter to Senator Specter, the
Department of Justice provided statistics on the number of
search warrants granted and the number of those for which
delayed notice was sought and granted:
32,529 search warrants were handled by U.S.
District Courts during a 12-month period ending
September 30, 2003, according to the Administrative
Office of the U.S. Courts.
61 search warrants had delayed notice in a
comparable 14-month period--between April 2003, and
July 2004, according to a Department survey of the U.S.
Attorney Offices.
When comparing the two periods, delayed
notice under section 213 was granted for only 0.2
percent of the total search warrants handled by the
courts.
155 search warrants had delayed notice in
the period from enactment of the USA PATRIOT Act on
October 26, 2001 through January 31, 2005--a period of
more than three years.
Assuming that the number of search warrants
was the same for three years, the number would be 0.15
percent of the total search warrants handled by the
courts.
Of the 98 U.S. Attorneys' Offices, 48
Offices never used a delayed notice search warrant
under section 213 and only 40 Offices--less than half
of the total number of U.S. Attorneys' Offices--used a
delayed notice search warrant under any authority.
Of the 40 Offices that used section 213, 17
used section 213 only once.
7. Tuesday, May 5, 2005--Oversight Hearing on Section 212 of the USA
PATRIOT Act That Allows Emergency Disclosure of Electronic
Communications To Protect Life and Limb
On Thursday, May 5, 2005, the Subcommittee held a hearing
on section 212 of the USA 1PATRIOT Act. Section 212 of the USA
PATRIOT Act allows computer-service providers to disclose
electronic communications in life-threatening emergencies to
law enforcement and is scheduled to expire on December 31,
2005.
Four witnesses--the Honorable William Moschella, Assistant
Attorney General, Office of Legislative Affairs, U.S.
Department of Justice; Willie Hulon, Assistant Director of the
Counterterrorism Division, Federal Bureau of Investigation;
Professor Orrin Kerr, Professor of Law at the George Washington
University Law School; and James X. Dempsey, Executive Director
of the Center for Democracy and Technology as the witness for
the Minority--testified.
This hearing examined section 212 of the USA PATRIOT Act
that allows computer-service providers to disclose information
under emergencies that threaten life or limb. To understand the
effect of section 212, following is an explanation of the
prohibitions for disclosing stored electronic communications
that existed before and exist after enactment of the USA
PATRIOT Act. The 1986 Electronic Communications Privacy Act
(ECPA) to authorize Government access to e-mail and other
electronic communications ``in storage.'' Section 2701(a) of
that chapter makes it a Federal offense to unlawfully access
stored communications. Subsection (c) of 18 U.S.C. Sec. 2701
provides exceptions to the prohibitions in (a). Those
exceptions include conduct authorized by the person or entity
providing a wire or electronic communications service; conduct
authorized by a user of that service with respect to a
communication of or intended for that user; and exceptions
described in sections 2702, 2703, 2704, and 2518 of title 18.
Subsection 2702(a) restricts voluntary disclosure of
customer communications or records, unless the disclosure falls
under one of the specified exceptions in subsections 2702(b) or
2702(c). Subsection 2702(b) provides exceptions for disclosure
of the contents of a communication. Subsection 2702(c) provides
exceptions for the disclosure of customer records. Under
section 2702(c) a provider covered by subsection 2702(a) may
divulge a record or other information pertaining to a
subscriber to or customer of such service that does not include
the contents of communications covered by subsections
2701(a)(1) or (a)(2).
Section 2703 provides the standards for Government access
to electronic communications in storage. Section 2703(a)
requires a search warrant to compel service providers to
disclose unopened e-mails.
Sec. 212. Emergency Disclosure of Electronic Communications
to Protect Life and Limb. Section 212 of the USA PATRIOT Act
amended sections 2702 and 2703 of title 18. Prior to enactment
of the USA PATRIOT Act, there were two basic problems with the
disclosure rules for stored electronic communications. First,
the law contained no provision allowing electronic
communications service providers to voluntarily disclose
communications when necessary to protect life and limb. Thus,
``for example, an Internet service provider (``ISP'')
independently learned that one of its customers was part of a
conspiracy to commit an imminent terrorist attack, prompt
disclosure of the account information to law enforcement could
save lives. Since providing this information did not fall
within one of the statutory exceptions, however, an ISP making
such a disclosure could be sued civilly.'' \28\
---------------------------------------------------------------------------
\28\ Field Guidance on New Authorities That Relate to Computer
Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001,
Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of
Justice.
---------------------------------------------------------------------------
Second, while the law allowed communications service
providers to protect their rights and property by disclosing
stored communications that contained content, the law did not
allow them to disclose communications that contained ``non-
content'' records for such protection. Allowing providers to
disclose content, but not non-content communications, to
protect their rights and property had, according to the
Department of Justice, substantially hindered providers'
ability to protect themselves from cyber-terrorists and
criminals.
The USA PATRIOT Act addresses both issues. To resolve the
first problem addressing life and limb emergencies, section 212
amends subsection 2702(b) to authorize communications service
providers to voluntarily disclose the stored ``content'' and
``non-content'' communications of their customers or
subscribers if the provider reasonably believes that an
emergency involving immediate danger of death or serious
physical injury to any person requires disclosure of the
information without delay. This language was later amended in
2002 under the ``Cyber Security Enhancement Act,'' which was
introduced by Mr. Lamar Smith, then Chairman of the
Subcommittee on Crime, Terrorism, and Homeland Security.\29\
---------------------------------------------------------------------------
\29\ The Cyber Security Enhancement Act was incorporated into the
Homeland Security Act of 2002.
---------------------------------------------------------------------------
The Cyber Security Enhancement Act contains a section that
made a conforming amendment to the USA PATRIOT Act to allow
communications services providers to disclose communications to
government entities in emergency situations where the provider
in good faith believes that there is a danger of death or
physical injury. For customer communications, the USA PATRIOT
Act creates an exception that allows emergency disclosures to
``law enforcement,'' when the provider reasonably believes
there was immediate danger. For customer records, however, the
USA PATRIOT Act creates a broader exception allowing disclosure
of such records to ``a governmental entity.'' This section
changes the emergency exception for disclosing customer
communications to include other Government agencies, such as
emergency response personnel, health officials, and the
Department of Defense. Thus, the provider could contact, for
instance, the Centers for Disease Control as well as law
enforcement. It should be noted that section 212 does not
impose an affirmative obligation to review customer
communications in search of such imminent dangers.
As to the second problem regarding property rights of the
communications services provider, section 212 amends the law to
allow communications services providers to disclose non-content
information (such as the subscriber's login records). ``It
accomplishes this change by two related sets of amendments.
First, amendments to sections 2702 and 2703 of title 18
simplify the treatment of voluntary disclosures by providers by
moving all such provisions to 2702. Thus, section 2702 now
regulates all permissive disclosures (of content and non-
content records alike), while section 2703 covers only
compulsory disclosures by providers. Second, an amendment to
new subsection 2702(c)(3) clarifies that service providers do
have the statutory authority to disclose non-content records to
protect their rights and property. All of these changes will
sunset December 31, 2005.'' \30\
---------------------------------------------------------------------------
\30\ Field Guidance on New Authorities That Relate to Computer
Crime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001,
Computer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of
Justice.
---------------------------------------------------------------------------
8. Tuesday, May 10, 2005, Oversight Hearing on the Prohibition of
Material Support to Terrorists and Foreign Terrorist
Organizations and on the DOJ Inspector General's Report on
Civil Liberty Violations Under the USA PATRIOT Act
On Tuesday, May 10, 2005, the Subcommittee on Crime,
Terrorism, and Homeland Security for the Committee on the
Judiciary held a hearing on the USA PATRIOT Act. This hearing
examined the prohibition of material support to terrorists and
foreign terrorist organizations and the requirement of the
Department of Justice Inspector General (IG) to report every
six months on any violations of civil liberties. Four
witnesses--the Honorable Glenn Fine, Inspector General of the
Department of Justice; the Honorable Gregory G. Katsas, Deputy
Assistant Attorney General, Civil Division of the Department of
Justice; Mr. Barry Sabin, Chief of the Counterterrorism Section
of the Criminal Division of the Department of Justice; and
Ahilan Arulanantham, Staff Attorney for the American Civil
Liberties Union of Southern California--testified.
The hearing focused on section 805(a)(2)(B) of the USA
PATRIOT Act as amended by section 6603 of the Intelligence
Reform and Terrorism Prevention Act of 2004, which covers
Material Support, and section 1001 of the USA PATRIOT Act,
which requires the IG to report to the Congress ever six months
on whether the IG has found any civil liberty violations.
A. Section 1001 of the USA PATRIOT Act
Section 1001 requires the Inspector General of the
Department of Justice to submit a semiannual report. This
section does not sunset, but does help the Committee understand
the existence and extent of civil liberty abuses by the
Department of Justice. Specifically, section 1001 directs the
IG to investigate claims of civil rights or civil liberties
violations allegedly committed by the Department of Justice.
Since enactment of the USA PATRIOT Act, the IG has issued six
semi-annual reports. In the sixth (and most recent) report,
which was issued in March 2005, the IG had yet to find any
violations under the USA PATRIOT Act.
1. Background
Section 1001 of the USA PATRIOT Act is based upon a
proposal that emerged during consideration of anti-terrorism
legislation by the House Judiciary Committee. The Committee
report explains, ``In the wake of several significant incidents
of security lapses and breach of regulations, there has arisen
the need for independent oversight of the Federal Bureau of
Investigation. Oversight of the Federal Bureau of Investigation
is currently under the jurisdiction of the Department of
Justice Office of Professional Responsibility. This section
directs the Inspector General of the Department of Justice to
appoint a Deputy Inspector General for Civil Rights, Civil
Liberties. This section also directs the Deputy Inspector to
review all information alleging abuses of civil rights, civil
liberties, and racial and ethnic profiling by employees of the
Department of Justice, which could include allegations of
inappropriate profiling at the border,'' H.Rept. 107-236, at
78. (2001).
2. The Department of Justice Office of Inspector General
The Office of the Inspector General (OIG) in the Department
of Justice is an independent entity that reports to both the
Attorney General and Congress. The OIG's mission is to
investigate allegations of waste, fraud, and abuse in DOJ
programs and personnel and to promote economy and efficiency in
DOJ operations. The OIG has jurisdiction to review programs and
personnel in all DOJ components. Since its creation in 1989,
the OIG has had the authority to conduct audits and inspections
in all DOJ components and investigations of employee misconduct
in all components except the FBI and the Drug Enforcement
Agency (DEA). On July 11, 2001, the Attorney General expanded
the OIG's jurisdiction to include criminal and administrative
investigations of FBI and DEA employees.
3. Section 1001
Section 1001 of the USA PATRIOT Act provides the following:
The Inspector General of the Department of Justice shall
designate one official who shall:
(1) review information and receive complaints alleging
abuses of civil rights and civil liberties by employees and
officials of the Department of Justice;
(2) make public through the Internet, radio, television,
and newspaper advertisements information on the
responsibilities and functions of, and how to contact, the
official; and
(3) submit to the Committee on the Judiciary of the House
of Representatives and the Committee on the Judiciary of the
Senate on a semi-annual basis a report on the implementation of
this subsection and detailing any abuses described in paragraph
(1), including a description of the use of funds appropriations
used to carry out this subsection.
To undertake the responsibilities designated to the OIG by
section 1001, the OIG established the Special Operations Branch
in its Investigations Division to help manage the OIG's
investigative responsibilities outlined in the USA PATRIOT Act.
The Special Operations Branch receives civil rights and civil
liberties complaints via mail, e-mail, telephone, and
facsimile. Once a complaint is received, it is reviewed by the
Investigative Specialist and ASAC responsible for USA PATRIOT
Act complaints. After review, the complaint is entered into an
OIG database and a decision is made concerning its disposition.
The more serious civil rights and civil liberties allegations
that relate to actions of a DOJ employee or contractor are
assigned to an OIG Investigations Division field office for
investigation. The OIG has approximately 120 series 1811
special agents who conduct investigations of criminal
violations and administrative misconduct. Because of its
limited resources, the OIG refers some complaints involving DOJ
employees to internal affairs offices in DOJ components, such
as the FBI and the Bureau of Prisons (BOP) for appropriate
handling. Certain referrals require the component to report the
results of their investigation to the OIG. In most cases, the
OIG notifies the complainant of the referral. Complaints
outside the OIG's jurisdiction that identify a specific issue
for investigation are forwarded to the appropriate
investigative entity.
In addition, the OIG has referred complainants to a variety
of police department internal affairs offices. Since passage of
the USA PATRIOT Act, the OIG also has been in close
communication with the DOJ Civil Rights Division's National
Origin Working Group (NOWG) to Combat the (Post-9/11
Discriminatory Backlash). The NOWG regularly forwards
complaints alleging civil rights and civil liberties abuses to
the OIG for review. Many of the complaints forwarded by the
NOWG are the result of media database searches.
When an allegation received from any source involves a
potential violation of Federal civil rights statutes by a DOJ
employee, the complaint is discussed with the DOJ Civil Rights
Division for prosecutorial review. In some cases, the Civil
Rights Division accepts the case and requests additional
investigation by either the OIG or FBI. In other cases, the
Civil Rights Division declines prosecution.\31\
---------------------------------------------------------------------------
\31\ Report to Congress on Implementation of Section 1001 of the
USA PATRIOT Act (as required by Section 1001(3) of Public Law 107-56)
(Mar. 2005), Office of the Inspector General, U.S. Dept. of Justice,
available at http://www.usdoj.gov/oig/special/0503/index.htm.
---------------------------------------------------------------------------
4. Complaints Processed This Reporting Period
From June 22, 2004, through December 31, 2004, the period
covered by the sixth report, the OIG processed 1,943 complaints
that were sent primarily to the OIG's section 1001 e-mail or
postal address. Of these complaints, 1,748 did not warrant
further investigation or did not fall within the OIG's
jurisdiction. Approximately three-quarters of the 1,748
complaints made allegations that did not warrant an
investigation. For example, some of the complaints alleged that
Government agents were broadcasting signals that interfere with
a person's thoughts or dreams or that prison officials had
laced the prison food with hallucinogenic drugs. The remaining
one-quarter of the 1,748 complaints in this category involved
allegations against agencies or entities outside of the DOJ,
including other Federal agencies, local governments, or private
businesses. The OIG referred those complaints to the
appropriate entity or advised complainants of the entity with
jurisdiction over their allegations.
Consequently, 195 complaints involved DOJ employees or
components and made allegations that required further review.
Of those complaints, 170 raised management issues rather than
alleged ``civil rights'' or ``civil liberties'' abuses and were
referred to DOJ components for handling. For example, inmates
complained about the general conditions at Federal prisons,
such as the poor quality of the food or the lack of hygiene
products. Twelve of the 195 complaints did not provide
sufficient detail to make a determination whether an abuse was
alleged. The OIG requested further information but did not
receive responses from any of these 12 complainants. Finally,
the OIG requested that the BOP investigate one of the
complaints and report to the OIG on the investigation's
findings. That complaint involved an inmate who complained that
he was sexually harassed by a correctional officer. BOP's
investigation of the matter is ongoing.
Therefore, after analyzing these 195 complaints, the OIG
identified 12 matters that the OIG believed warranted opening a
section 1001 investigation or conducting a closer review to
determine if section 1001-related abuse occurred. Of the 12
matters, the OIG retained one for investigation because the
complainant made allegations of a potentially criminal nature.
The OIG closed one because the allegations already had been
addressed in a previous OIG investigation. The OIG referred the
remaining ten matters, which appeared to raise largely
administrative issues, to Department components for further
investigation or review. For six of the ten matters, the OIG
requested that the components report their findings to the IG.
None of the complaints the OIG processed during this
reporting period alleged misconduct by DOJ employees relating
to the use of a provision in the USA PATRIOT Act.\32\ In
addition, the IG has not substantiated claims of alleged
misconduct resulting from the use of a provision of the USA
PATRIOT Act in any prior report, although one such allegation
is still under review.\33\
---------------------------------------------------------------------------
\32\ Id.
\33\ An OIG investigation relating to Brandon Mayfield is still
ongoing as of the date of this hearing.
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B. Prohibition on Material Support to Terrorists
1. The Antiterrorism and Effective Death Penalty Act of
1996
The USA PATRIOT Act did not create the prohibition on
material support to terrorists and foreign terrorist
organizations, but did amend that prohibition. It was the
``Antiterrorism and Effective Death Penalty Act of 1996,'' that
created prohibitions to sever material support from
international terrorists. The 1996 Act was in response to the
Oklahoma City and first World Trade Center terrorist attacks.
Subtitle A of Title III of the 1996 Act: (1) established the
procedure under which a foreign organization may be designated
as a terrorist organization; (2) proscribes providing such an
organization with ``material support;'' and (3) established a
system of civil penalties for banks and other financial
institutions that fail to freeze and report the assets of such
organizations. \34\
---------------------------------------------------------------------------
\34\ Antiterrorism and Effective Death Penalty Act of 1996: A
Summary, Charles Doyle, Senior Specialist, American Law Division,
Congressional Research Service, June 1996).
---------------------------------------------------------------------------
Section 302 of the 1996 Act ``established the procedure for
designating as foreign terrorist organizations those foreign
organizations that engage in terrorist activities that threaten
the national defense, foreign relations, or economic interests
of the United States or the security of U.S. nationals, 8
U.S.C. Sec. 1189. The designation by the Secretary of State
lasts for up to two years with the possibility of a two-year
renewal and may be withdrawn by the Secretary or by law. The
designation is subject to judicial review on behalf of the
designated organization if it is arbitrary, contrary to law, or
in excess of authority. The Government may provide any
supporting classified information to the court in secret. The
designation may not be contested by a donor subsequently
prosecuted for support nor by an alien excluded from the United
States for association. Assets of a designated organization
held by a financial institution may be frozen by order of the
Secretary of the Treasury.'' \35\
---------------------------------------------------------------------------
\35\ Id.
---------------------------------------------------------------------------
Section 303 of the 1996 Act ``outlaws providing support to
a foreign terrorist organization, 18 U.S.C. Sec. 2339B. In
addition to money and the instrumentalities of war, prohibited
support extends to food, medical supplies, and any other
physical asset except medicine itself and religious articles,
18 U.S.C. Sec. 2339A; 142 Cong.Rec. H3334 (daily ed. April 5,
1996). The fact that a particular contribution is made and used
for humanitarian purposes is no defense since the gist of the
offense is contributing to a tainted organization regardless of
the purpose or use of the contribution. Violations are
punishable by imprisonment for not more than 10 years and/or a
fine of not more than $250,000. Financial institutions that
fail to report or comply with a freeze order are subject to
civil penalties of up to the greater of twice the amount
involved or $50,000. The proscriptions apply both in the United
States and to Americans and American institutions overseas.''
\36\
---------------------------------------------------------------------------
\36\ Id.
---------------------------------------------------------------------------
2. The 1998 Challenge to Material Support Prohibition
Led by the Humanitarian Law Project, six organizations and
two individuals challenged the constitutionality of the law in
1998, contending that it violated the First Amendment.
They argued, among other things, that the law infringed on
their free-association rights, granted too much discretion to
the secretary of state and prohibited their First Amendment
right to seek and donate funds.
A Federal district court rejected most of the First
Amendment claims, but ruled the definition of the term
``material support'' was vague enough to prevent the government
from enforcing the law.
On appeal, a three-judge panel of the 9th U.S. Circuit
Court of Appeals agreed in Humanitarian Law Project v. Reno.
Just as the lower court had, the appeals court cast aside most
of the First Amendment arguments.
The court rejected the free-association claim, finding that
the statute does not prohibit membership in a group or support
for the political goals of a group. ``What [the law] prohibits
is the act of giving material support, and there is no
constitutional right to facilitate terrorism by giving
terrorists the weapons and explosives with which to carry out
their grisly missions,'' the court wrote in its March 3
opinion.
The plaintiffs contended that the law could be interpreted
to prohibit the giving of material support to the so-called
terrorist groups' nonviolent humanitarian and political
activities.
However, the 9th Circuit determined that the First
Amendment did not protect the right to give funds to terrorist
groups. These ``terrorist groups do not maintain open books,''
the court wrote. ``Therefore, when someone makes a donation to
them, there is no way to tell how the donation is used.''
The appeals court distinguished between giving material
support to a group and advocating the beliefs and ideas of a
group. ``Advocacy is far different from making donations of
material support,'' the court wrote.
The appeals court also dismissed the plaintiffs' argument
that the statute had empowered the secretary of state with
``unfettered discretion'' to determine whether a group is a
terrorist organization.
The 9th Circuit pointed out that the secretary of state can
only designate a group as a terrorist group if he or she has
``reasonable grounds to believe that an organization has
engaged in terrorist acts.''
However, the appeals court agreed with the plaintiffs and
the lower court that some of the law's language was too vague.
The law defined ``material support'' as:
Currency or other financial securities, financial services,
lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation and
other physical assets, except medicine or religion.
The court focused on the terms ``training'' and
``personnel,'' finding that these terms ``blur[red] the line
between protected expression and unprotected conduct.''
``Someone who advocates the cause of * * * [a terrorist
organization] * * * could be seen as supplying them with
personnel,'' the court wrote.
The appeals court also had trouble with the word
``training.'' ``For example, a plaintiff who wishes to instruct
members of a designated group on how to petition the United
Nations to give aid to their group could plausibly decide that
such protected expression falls within the scope of the term
`training.' '' For these reasons, the court ruled that the
lower court did not ``abuse its discretion'' in issuing a
preliminary injunction.\37\
---------------------------------------------------------------------------
\37\ Federal appeals panel finds anti-terrorism law
unconstitutionally vague, David Hudson, First Amendment Center research
attorney, (April 8, 2000). [emphasis added].
---------------------------------------------------------------------------
3. USA PATRIOT Act Amends the Material Support Provision
Section 805(a)(2)(B) of the USA PATRIOT Act added the
phrase ``expert advice or assistance'' to the types of material
support to terrorists that is banned by the criminal law. Title
18 U.S.C. Sec. 2339A prohibited providing material support or
resources to terrorists prior to enactment of the USA PATRIOT
Act. Prohibition on expert advice or assistance also applies to
18 U.S.C. Sec. 2339B's prohibition of material support to FTOs.
The existing definition of ``material support or resources''
was not broad enough to encompass expert services and
assistance--for example, advice provided by a person with
expertise in aviation matters to facilitate an aircraft
hijacking, or advice provided by an accountant to facilitate
the concealment of funds used to support terrorist activities.
This section accordingly amended 18 U.S.C. Sec. 2339A to
include expert services and assistance, making the offense
applicable to experts who provide services or assistance
knowing or intending that the services or assistance is to be
used in preparing for or carrying out terrorism crimes. This
also applies to 18 U.S.C. Sec. 2339B.
4. Challenges to the USA PATRIOT Act Prohibition of
Material Support to Terrorists
a. December 3, 2003 9th Circuit Decision
Los Angeles--Civil rights lawyers filed a free-speech
challenge . . . to a section of the USA Patriot Act that makes
it illegal to provide ``expert advice and assistance'' to
groups with alleged links to terrorists.
The ban is unconstitutionally vague and should be struck
down, the New York-based Center for Constitutional Right argued
in a motion filed in Federal court.
The motion was included in the center's current lawsuit,
Humanitarian Law Project v. Ashcroft, which challenges a 1996
law that makes it a crime to provide material support to any
group designated a foreign terrorist organization. Federal
courts have already struck down portions of that law that
barred providing personnel or training to terrorist groups,
saying the provisions were unconstitutionally vague.
The Patriot Act, passed after the Sept. 11, 2001, terrorist
attacks, amended the definition of material support to include
``expert advice and assistance.''
The plaintiffs say they want to provide support for lawful,
nonviolent activities by two groups designated as foreign
terrorist organizations: the Kurdistan Workers' Party in Turkey
and the Liberation Tigers of Tamil Eelam in Sri Lanka.
One of the plaintiffs, Dr. Nagalingam Jeyalangim, would
like to work as a doctor in his war-torn homeland of Sri Lanka.
However, because some hospitals are controlled by rebel forces
there, he fears he could be prosecuted for ``providing material
support'' to a terrorist group, according to the filing.
* * * * * * *
---------------------------------------------------------------------------
\38\ Patriot Act dealt blow by federal judge, The Associated Press,
January 26, 2004.
---------------------------------------------------------------------------
b. The 9th U.S. Circuit Court of Appeals Overturns
Circuit's Ruling That the 1996 Terror Financing Law
Was Unconstitutional
A Federal appeals court reinstated indictments against
seven Los Angeles residents accused of raising money for a
terror organization with links to ousted Iraqi ruler Saddam
Hussein. In a victory for the Bush administration's war on
terror, the 9th U.S. Circuit Court of Appeals yesterday
reversed a Los Angeles Federal judge who declared the 1996
terror financing law unconstitutional.
The law makes it illegal to funnel money--``material
support''--to organizations the State Department says are
linked to terrorism, about 30 groups in all.
Before the Sept. 11, 2001, attacks, the government rarely
used the terror law. Subsequently the administration has used
the law to win dozens of terror convictions nationwide, from
Lackawanna, N.Y., to Seattle to Portland, Ore.
* * * * * * *
The case stems from a 2001 indictment against the seven
defendants for allegedly providing several hundred thousand
dollars to the Mujahedin-e Khalq, which the appeals court said
``participated in various terrorist activities against the
Iranian regime'' and ``carried out terrorist activities with
the support of Saddam Hussein's regime.''
U.S. District Judge Robert Takasugi had invalidated the
law, saying it did not provide the groups a proper forum to
contest their terror designations.
But a three-judge panel of the San Francisco-based Federal
appeals court overruled that decision and went a step further,
saying individuals accused of supporting the listed groups
cannot challenge whether the groups should be listed.
The government, the court said, must prove the ``fact that
a particular organization was designated at the time the
material support was given, not whether the government made a
correct designation.''
The 9th Circuit decision mirrors a ruling this year by the
4th U.S. Circuit Court of Appeals in Richmond, Va., upholding
the conviction of a man who funneled money to the militant
Hezbollah organization while insisting he had a right to
challenge that group's listing.
``The Justice Department is pleased that yet another court
has upheld the constitutionality of the material-support
statute, a key weapon in our arsenal of legal remedies in the
war on terror,'' spokesman John Nowacki said. ``Stopping the
flow of money and other resources to terrorists is critical to
our success, and the department will continue to pursue those
who provide material support for terrorist objectives.''
The seven Los Angeles defendants said it violated their
First Amendment rights to be prohibited from contributing money
to groups they say are not terror organizations. They said they
should be afforded the right to prove that the group in
question should not be on the State Department's list.
Writing for the majority, Judge Andrew J. Kleinfeld said
the First Amendment did not protect unlimited speech, and even
allowed limits on campaign contributions.
``It would be anomalous indeed if Congress could prohibit
the contribution of money for television commercials saying why
a candidate would be a good or bad choice for political office,
yet could not prohibit contribution of money to a group
designated a terrorist organization,'' Kleinfeld wrote.
* * * * * * *
According to the indictment, the Los Angeles defendants
solicited donations at the Los Angeles International Airport
and wired money to a Mujahedin-e Khalq bank account in Turkey.
The group had tried unsuccessfully to get removed from the
terror list.
No court date has been set for the seven.\39\
---------------------------------------------------------------------------
\39\ 9th Circuit reinstates terror indictments, the Associated
Press, December 21, 2004.
---------------------------------------------------------------------------
5. Intelligence Reform and Terrorism Prevention Act of 2004
Section 6603 of the Intelligence Reform and Terrorism
Prevention Act of 2004 adds a new crime of material support for
terrorism for knowingly receiving military training from a
foreign terrorist organization. The section requires that any
person charged under this section must have knowledge that the
organization is a terrorist organization. It also defines the
term ``military-type training.'' Section 6603 also expands the
crime of material support to terrorists to include any act of
international or domestic terrorism.
Section 6603(c) specifies that any person charged under
this section must have knowledge that the organization is a
terrorist organization. It also more clearly defines the term
``material support.'' The Intelligence Reform and Terrorism
Prevention Act of 2004 attempted to address the court cases
finding the terms ``training'' and ``personnel'' under the
prohibition unconstitutionally vague,\40\ and the term ``expert
advice or assistance'' in material support statute
unconstitutionally vague.\41\
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\40\ See Humanitarian Law Project v. United States Department of
Justice, 352 F.3d 382 (9th Cir. 2003).
\41\ Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D.
Cal. Jan. 22, 2004).
---------------------------------------------------------------------------
The Intelligence Reform and Terrorism Prevention Act
provides more detailed definitions of the terms ``training,''
and ``expert advice or assistance'' under section 6603(b); and
``personnel'' under section 6603(f) by creating new section
3229B(a)(1)(h) of title 18 that limits the term ``personnel.''
To address the Ninth Circuit's concern that
the term ``training'' is vague and may cover protected
First Amendment activity, the Act provides that
training includes only instruction or teaching designed
to impart a specific skill. This definition addresses
the Ninth Circuit's concern that the material support
statute could cover imparting general knowledge to a
terrorist organization (such as knowledge about
international law). It also addresses the Ninth
Circuit's concern that the term ``training'' could
cover First Amendment protected activity by
specifically stating that the statute does not cover
such activity.
To address the Ninth Circuit's concern that
the term ``personnel'' is unconstitutionally vague and
could be interpreted to cover those independently
advocating on behalf of a foreign terrorist
organization, the legislation provides that the term
``personnel'' only refers to those either: (1) working
under a terrorist organization's direction or control;
or (2) managing or supervising the terrorist
organization. This definition makes it clear that those
independently advocating on behalf of a foreign
terrorist organization's goals are not covered by the
material support statute.
To address the Ninth Circuit's concern that
the term ``expert advice or assistance'' is vague, the
legislation provides that ``expert advice or
assistance'' means advice derived from scientific,
technical, or other specialized knowledge. This
definition is taken from the definition of expertise
found in the Federal Rules of Evidence. It is well-
known and well-understood by lawyers and courts. The
proposal also addresses the Ninth Circuit's concern
that the term ``expert advice or assistance'' could
cover First Amendment protected activity by
specifically stating that this language does not cover
such activity.
Section 6603(f) contains an exception that ``no person may
be prosecuted under this section in connection with the term
`personnel,' `training,' or `expert advice or assistance' if
the provision of that material support or resources to a
foreign terrorist organization was approved by the Secretary of
State with the concurrence of the Attorney General.''
Section 6603(g) also provides that section 6603 sunsets on
December 31, 2006.
6. 9th Circuit Lifts 2002 Injunction Protecting Donors to
Terrorist Organizations
A Federal appeals court yesterday lifted an injunction that
had barred the government from prosecuting a Los Angeles group
if it aids organizations labeled as supporting terrorism.
The decision by the 9th U.S. Circuit Court of Appeals came
days after President Bush signed legislation overhauling U.S.
intelligence gathering and terror-enforcement rules. The San
Francisco-based court said yesterday's decision in Humanitarian
Law Project v. Dept. of Justice was based partly on the
Intelligence Reform and Terrorism Prevention Act of 2004, which
Bush signed into law on Dec. 17.
The appeals court, however, did not comment on whether the
Humanitarian Law Project could ever be prosecuted if it
provided advice to the Kurdistan Workers' Party or the Tamil
Tigers Eelam in Sri Lanka.
The 11-judge panel of the 9th Circuit sent the case back to
the lower courts, wherethe Humanitarian Law Project is expected
to challenge the new provisions.
``The end goal is to get another injunction,'' said David
Cole, a Georgetown University School of Law scholar who won the
2002 injunction on behalf of the Humanitarian Law Project.
Cole said the group would abide by the court's order.
The State Department lists the Sri Lanka and Turkey groups
as terror organizations. That makes it illegal for those in the
United States to provide financial assistance under a 1996 law
created in the aftermath of the attack on the Oklahoma City
Federal building.
The Humanitarian Law Project was not seeking to give money.
Rather, it wanted to donate personnel and training time to
teach the groups about human rights and peacemaking, according
to court documents.
The humanitarian group had provided human rights support to
the Kurdistan party for years before the party was declared a
terror organization by the United States. The humanitarian
group challenged the 1996 law in Los Angeles Federal court a
year later, Cole said.
The group sought the injunction because it feared its
members might be prosecuted and imprisoned for up to 15 years.
Before the Sept. 11, 2001, attacks, the government rarely
used the terror law. The administration subsequently has
employed it to win dozens of terror convictions nationwide,
from Lackawanna, N.Y., to Seattle and Portland, Ore.
In 2003, the 9th Circuit said the Humanitarian Law Project
could donate human rights and peacemaking services because the
law did not specifically outlaw such assistance. . . .
The legislation, which creates a national intelligence
center and the position of national intelligence director,
makes it illegal to assist the roughly 30 organizations the
State Department says are linked to terrorism.
The new law virtually outlaws any form of assistance,
financial or not.
* * * * * * *
Yesterday's decision comes a day after a different panel of
the 9th Circuit reinstated the indictments against seven Los
Angeles residents accused of raising money for a terror
organization with links to ousted Iraqi ruler Saddam Hussein.
The group claimed they had a right to challenge whether the
terror group they were funding--Mujahedin-e Khalq--should be on
the terror list. The appeals court said the government must
prove the ``fact that a particular organization was designated
at the time the material support was given, not whether the
government made a correct designation.'' \42\
---------------------------------------------------------------------------
\42\ 9th Circuit lifts injunction protecting donors, the Associated
Press, December 22, 2004.
---------------------------------------------------------------------------
9. May 26, 2005, Oversight Hearing on Material Witness Provisions of
the Criminal Code and the Sections 505 and 804 of the USA
PATRIOT Act
On Thursday, May 26, 2005, the Subcommittee on Crime,
Terrorism, and Homeland Security for the Committee on the
Judiciary held a hearing on material witness provisions of the
criminal code and sections 505 (related to National Security
Letters) and 804 (related to jurisdiction over crimes committed
at U.S. facilities abroad) of the USA PATRIOT Act. The
Subcommittee heard testimony from four witnesses--Chuck
Rosenberg, Chief of Staff to the Deputy Attorney General of the
Department of Justice; Matthew Berry, Counselor to the
Assistant Attorney General of the Department of Justice; and
two witnesses for the minority: Gregory Nojeim, Acting Director
of the Washington Legislative Office of the American Civil
Liberties Union; and Shayana Kadidal, Staff Attorney, Center
for Constitutional Rights.
A. National Security Letters
1. What Is a National Security Letter?
A National Security Letter (NSL) is an administrative
subpoena that can be used in international counterterrorism or
foreign counterintelligence investigations. An administrative
subpoena is an investigative tool that allows the FBI to
request (compliance varies, see examples) document production
or testimony without prior approval from a grand jury, court,
or other judicial entity. Congress grants the administrative
subpoena power of executive branch entities as well as the
scope and exercise of these authorities.
2. Types of National Security Letters
A NSL can be used under the following circumstances and
authorities:
18 U.S.C. Sec. 2709, the Electronic
Communications Privacy Act (ECPA), authorizes the FBI
to issue NSLs for: (1) telephone subscriber information
(limited to name, address, and length of service); (2)
telephone local and long distance toll billing records;
and (3) electronic communication transactional records.
12 U.S.C. Sec. 3414(a)(5), the Right to
Financial Privacy Act (RFPA), authorizes the FBI to
issue NSLs to obtain financial records from banks and
other financial institutions.
15 U.S.C. Sec. 1681u, the Fair Credit
Reporting Act (FCRA), authorizes the FBI to issue NSLs
to obtain consumer identifying information and the
identity of financial institutions from credit bureaus.
15 U.S.C. Sec. 1681v, Disclosures to
governmental agencies for counterterrorism purposes,
authorizes the FBI and other agencies to obtain credit
reports.
50 U.S.C. Sec. 436, Requests by authorized
investigate agencies, authorizes the FBI and other
agencies to obtain financial records.
3. When Can NSLs Be Issued?
In addition to the statutory authority set forth above,
when an NSL can be issued or used is governed by the applicable
Attorney General Guidelines for FBI National Security
Investigations and Foreign Intelligence Collection. NSLs are
used in international counterterrorism or foreign
counterintelligence investigations. However, this authority is
limited further: NSLs issued under 15 U.S.C. Sec. 1681v (credit
reports) can only be issued in counterterrorism cases; credit
reports cannot be obtained for a foreign counterintelligence
investigation under this section.
NSLs cannot be used in criminal investigations unrelated to
international terrorism or clandestine intelligence activities.
Furthermore, both Executive Order 12333 and the FBI require
that the FBI accomplish these investigations by the ``least
intrusive'' means.
4. Recent Legislative Changes to NSL Authority
P.L. 107-56, the ``USA PATRIOT Act,'' simplified the
NSL process. Prior to the Act, an FBI official
authorizing the issuance of an NSL had to certify that
there were specific and articulable facts that provide
a reason to believe that the information sought
pertains to a foreign power, or an agent of a foreign
power. The USA PATRIOT Act changed this to allow for
certification that the NSL is sought for a foreign
counterintelligence purpose to protect against
international terrorism and clandestine intelligence
activities.
This is consistent with the Supreme Court's rulings on the
issuance and purpose of administrative subpoenas. Previously
the signature of a high-ranking official at FBI headquarters
was required to issue an NSL and the process often took months.
In many cases, counterintelligence and counterterrorism
investigations suffered substantial delays while waiting for
NSLs to be prepared, returned from headquarters, and served.
The Act streamlines the process for obtaining NSL authority by
allowing the Director to designate an individual at
Headquarters, not lower than Deputy Assistant Director, or to
designate a Special Agent in Charge in a Bureau field office,
to authorize an NSL.
The Supreme Court has construed administrative
authorities, broadly holding that the ``government need
only show that the subpoena was issued for a lawfully
authorized purpose and sought information relevant to
the agency's inquiry,'' United States v. LaSalle Nat'l
Bank, 437 U.S. 298, 313 (1978); United States v.
Powell, 379 U.S. 48, 56 (1964); Oklahoma Press
Publishing Co. v. Walling, 327 U.S. 186, 209
(1946).\43\
---------------------------------------------------------------------------
\43\ Report to Congress on the Use of Administrative Subpoena
Authority by Executive Branch Agencies and Entities, Pursuant to Pub.
L. No. 106-544, Section 7, n. 8, p. 7.
---------------------------------------------------------------------------
``The Supreme Court has stated in United States v.
Morton Salt[, 338 U.S. 632, 652 (1950)] that, in
evaluating the appropriateness of an administrative
subpoena request, a court must simply determine that
`the inquiry is within the authority of the agency, the
demand is not too indefinite and the information sought
is reasonably relevant.' '' \44\
---------------------------------------------------------------------------
\44\ Report to Congress on the Use of Administrative Subpoena
Authority by Executive Branch Agencies and Entities, Pursuant to Pub.
L. No. 106-544, Section 7, p. 8.
---------------------------------------------------------------------------
P.L. 108-177, the ``Intelligence
Authorization Act for FY 2004,'' amended the Right to
Financial Privacy Act (RFPA) (12 U.S.C. Sec. 3401). The
Intelligence Authorization Act changed the definition
of ``financial institution'' for NSLs to be consistent
with the definition of ``financial institution'' used
for money laundering under 31 U.S.C. Sec. 5312(a)(2).
The old definition used for NSLs defined ``financial
institution'' to cover any office of a (1) bank; (2)
savings bank; (3) card issuer as defined in section
1602(n) of title 15; (4) industrial loan company; (5)
trust company; (6) savings association; (7) building
and loan, or homestead association (including
cooperative banks); (8) credit union, or consumer
finance institution.
The money laundering definition under 31 U.S.C.
Sec. 5312(a)(2), now applied to NSLs, covers: (1) An
insured bank (as defined in section 3(h) of the Federal
Deposit Insurance Act (12 U.S.C. Sec. 1813(h))); (2) a
commercial bank or trust company; (3) a private banker;
(4) an agency or branch of a foreign bank in the U.S.;
(5) a credit union; (6) a thrift institution; (7) a
broker or dealer registered with the Security and
Exchange Commission under the Security Exchange Act of
1934 (15 U.S.C. Sec. 78 et seq.); (8) a broker or
dealer in securities or commodities; (9) an investment
banker or investment company; (10) a currency exchange;
(11) an issuer, redeemer, or cashier of travelers'
checks, checks, money orders, or similar instruments;
(12) an operator of a credit card system; (13) an
insurance company; (14) a dealer in precious metals,
stones, or jewels; (15) a pawnbroker; (16) a loan or
finance company; (17) a travel agency; (18) a licensed
sender of money or any other person engaged in the
transmission of funds; (19) a telegraph company; (20) a
business engaged in vehicle sales, including
automobile, airplane, and boat sales; (21) persons
involved in real estate closings and settlements; (22)
the U.S. Postal Service; (23) an agency of the United
States Government or state or local government carrying
out a duty or power of a business described in this
paragraph; (24) a casino, gambling casino, or gaming
establishment with an annual gaming revenue of more
than 1 million; (25) any business or agency that
engages in any activity that the Secretary of the
Treasury determines, by regulation, to be an activity
which is similar to, related to, or a substitute for,
any activity in which any business described in this
paragraph is authorized to engage; or (26) any other
business designed by the Secretary whose case
transactions have a high degree of usefulness in
criminal, tax, or regulatory matters.
It should be noted that under the money
laundering provision, the Treasury Department also can
use an administrative subpoena to get certain
information. See 31 U.S.C. Sec. 5318(a)(4). Moreover,
the FBI would usually use a grand jury subpoena (no
court needed) to obtain certain information. Finally,
the provisions in the Intelligence Authorization Act of
2004, Pub. L. No. 108-177, do not change the USA
PATRIOT Act.
5. Previously Proposed Changes to NSLs
H.R. 3179, the ``Anti-Terrorism Intelligence
Tools Improvement Act of 2003,'' (9/25/04) introduced
by Representatives Sensenbrenner and Goss in the 108th
Congress: The bill would have established a penalty for
an individual to disclose that he or she has received a
request for information under an NSL and would have
authorized the Attorney General to seek judicial
enforcement against those refusing to comply with an
NSL.
Under current law, a person is generally
prohibited from disclosing that he has received a
request for information under an NSL. H.R. 3179 would
have added a penalty for such a disclosure, making it a
misdemeanor, unless the disclosure was intended to
obstruct a terrorism or espionage investigation, then
such a disclosure would be subject to imprisonment for
not more than five years.
Currently, no judicial enforcement
procedures exist when a recipient of an NSL refuses to
comply. H.R. 3179 would have authorized the Attorney
General to seek judicial enforcement in NSL cases.
Statutes granting administrative subpoena
authorities usually fall into three enforcement type-
categories: (1) the statute authorizes an agency to
apply directly to an appropriate U.S. District Court
for enforcement assistance; (2) the statute requires
the agency official to request the Attorney General's
aid in applying to a U.S. District Court for
enforcement assistance; or (3) the statute contains no
identified enforcement mechanism. Some of the statutes
granting authority for issuing NSLs contain no
enforcement mechanisms.
6. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)
In September 2004, the United States District Court for the
Southern District of New York struck down 18 U.S.C. Sec. 2709,
the statute authorizing ``national security letters,'' or NSLs,
for customer records from Internet, telephone, and other
electronic service providers.
In Doe v. Ashcroft, the court found that the language of 18
U.S.C. 2709 and the practices surrounding its use offended (1)
the Fourth Amendment because ``in all but the exceptional case
it has the effect of authorizing coercive searches effectively
immune from any judicial process,'' 334 F.Supp.2d at 506, and
(2) the First Amendment because its sweeping, permanent gag
order provision applies ``in every case, to every person, in
perpetuity, with no vehicle for the ban to ever be lifted from
the recipient or other persons affected under any
circumstances, either by the FBI itself, or pursuant to
judicial process,'' id. at 476. The court concluded that the
national security letters before it differed from
administrative subpoenas by want of judicial review either
before or after ``the seizure'':
While the Fourth Amendment reasonableness standard is
permissive in the context of the administrative
subpoenas, the constitutionality of the administrative
subpoena is predicated on the availability of a neutral
tribunal to determine, after a subpoena issued, whether
the subpoena actually complies with the Fourth
Amendment's demands. In contrast to an actual physical
search, which must be justified by the warrant and
probable cause requirements occurring before the
search, an administrative subpoena ``is regulated by
and its justification derives from, [judicial]
process'' available after the subpoena is issued.
Accordingly, the Supreme Court has held that an
administrative subpoena ``may not be made and
enforced'' by the administrative agency; rather, the
subpoenaed party must be able to ``obtain judicial
review of the reasonableness of the demand prior to
suffering penalties for refusing to comply.'' In sum,
longstanding Supreme Court doctrine makes clear that an
administrative subpoena statute is consistent with the
Fourth Amendment when it is subject to ``judicial
supervision'' and ``surrounded by every safeguard of
judicial restraint.'' 334 F.Supp.2d at 495, quoting
inter alia, Oklahoma Press Pub. Co. v. Walling, 327
U.S. at 217; See v. City of Seattle, 387 U.S. 541, 544-
45 (1967).
By way of emphasizing the troubling sweep of the
nondisclosure ban found in 18 U.S.C. 2709(c), the court
pointed to legislative proposals in the 108th Congress
that might serve as one of several possible models for
a more narrowly tailored means of protecting the
legitimate governmental interests upon which section
2709 rests.\45\
---------------------------------------------------------------------------
\45\ Doyle, Charles, Congressional Research Service RL32880,
Administrative Subpoenas and National Security Letters in Criminal and
Foreign Intelligence Investigations: Background and Proposed
Adjustments Administrative Subpoenas and National Security Letters in
Criminal and Foreign Intelligence Investigations: Background and
Proposed Adjustments. P. 24-25 (April 15, 2005).
---------------------------------------------------------------------------
7. Doe v. Ashcroft and H.R. 3179, ``The Anti-Terrorism
Intelligence Tools Improvement Act of 2003''
In the 108th Congress, Chairman Sensenbrenner introduced
H.R. 3179, in part to address the fact that some NSL had
explicit enforcement mechanisms and others did not. The Court
in Doe v. Ashcroft concluded that there were three problems
with NSLs: 1) the statute did not clarify whether consulting an
attorney would violate the prohibition on disclosure under the
law, 2) the statute contained no explicit provision for the
Government to seek judicial enforcement, and 3) there was no
provision imposing penalties against a person who fails to
comply with an NSL. The Court found that ``H.R. 3179 would have
addressed two of the issues listed above by explicitly
providing for judicial enforcement of NSLs and by imposing
penalties of up to five years' imprisonment for persons who
unlawfully disclose that they have received an NSL.'' \46\
---------------------------------------------------------------------------
\46\ Doe v. Ashcroft, 334 F. Supp. 2d 471, 493 (S.D.N.Y. 2004).
---------------------------------------------------------------------------
B. Extraterritorial Jurisdiction
1. What Is Extraterritorial Jurisdiction
Extraterritorial jurisdiction occurs when Federal law
applies overseas to U.S. citizens and U.S. foreign nationals
when there is some nexus to the United States, according to the
Congressional Research Service.
The Constitution does not forbid either Congressional
or state enactment of laws which apply outside the
United States. Nor does it prohibit either the Federal
government or the states from enforcing American law
abroad. In fact, several passages suggest that the
Constitution contemplates the application of American
law beyond the geographical confines of the United
States.\47\ It speaks of ``felonies on the high seas,''
``offences against the law of nations,'' ``commerce
with foreign nations,'' and of the impact of treaties.
---------------------------------------------------------------------------
\47\ Doyle, Charles, Congressional Research Service RS21306,
Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent
Developments in Brief. P. 1 (Sept 6, 2002).
---------------------------------------------------------------------------
The Constitution provides the power to enact criminal
laws with extraterritorial application. It vests
Congress with, among other things, the power ``to
regulate commerce with foreign nations * * * to define
and punish piracies and felonies committed on the high
seas, and offenses against the law of nations * * *''
and gives Congress legislative jurisdiction over places
acquired ``for the erection of forts, magazines,
arsenals, dock- years, and other needful buildings.''
The Constitution also limits the manner in which this
authority may be exercised. The due process clause of
the Fifth Amendment, for instance, bars the
extraterritorial application of Federal criminal laws
in the absence of a connection between the crime, the
defendant, and the United States. Prosecution requires
personal jurisdiction over the defendant and subject
matter jurisdiction over the crime. * * *.\48\
---------------------------------------------------------------------------
\48\ Doyle, Charles, Congressional Research Service RS21306,
Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent
Developments in Brief. P. 1 (Sept 6, 2002).
---------------------------------------------------------------------------
2. The Military Extraterritorial Jurisdiction Act of 2000
The Military Extraterritorial Jurisdiction Act covers
felonies, committed anywhere overseas, by members of the armed
forces or those accompanying or employed by the Department of
Defense, as if they were committed within the territorial
jurisdiction of the United States, 18 U.S.C. Sec. 3261.\49\
While the Military Extraterritorial Jurisdiction Act extended
Federal criminal jurisdiction to Defense Department employees
and contractors outside the U.S., it does not cover contractors
working for other agencies. Section 804 of the USA PATRIOT Act
closed this loophole.
---------------------------------------------------------------------------
\49\ Id. At 3.
---------------------------------------------------------------------------
3. Section 804 of the USA PATRIOT Act
According to the Congressional Research Service:
[The USA] PATRIOT Act addressed a split in the
circuit courts of appeals over whether the Federal laws
that outlaw such crimes as murder, rape, and robbery
when committed within Federal enclaves in this country
also apply on American governmental installations
abroad. With the enactment of section 804, they do; at
least when either the victim or the offender is a U.S.
national. Prior to the PATRIOT Act, the dispute
centered on the construction of 18 U.S.C. 7(3) which
defines the special territorial jurisdiction of the
United States. The Fourth and Ninth Circuits held that
the definition in subsection 7(3) includes areas in
other countries over which the host nation has afforded
the United States privileges akin to sovereignty. The
Second Circuit held that the subsection is intended to
encompass only those areas over which Congress may
exercise legislative jurisdiction of the kind
ordinarily vested in the Several States.
Congress resolved the dispute, or at least greatly
mitigated its consequences, when it enacted section 804
of the USA PATRIOT Act and the Military
Extraterritorial Jurisdiction Act of 2000. The Military
Extraterritorial Jurisdiction Act treats felonies,
committed anywhere overseas by members of the armed
forces or those accompanying or employed by them, as if
they were committed within the territorial jurisdiction
of the United States, 18 U.S.C. 3261. Section 804 of
the USA PATRIOT Act creates a new territorial
subsection in 18 U.S.C. 7: the special territorial
jurisdiction of the United States includes the overseas
business premises of Federal governmental entities and
the residences of the members of their staffs, but only
for crimes committed by or against Americans (other
than those who come within the military extension of 18
U.S.C. 3261). The split in the circuits remains of
consequence for crimes committed in Federal overseas
facilities by foreign nationals who are not associated
with the U.S. armed forces. In the Fourth and Ninth
Circuits, such crimes may come within the territorial
jurisdiction of the United States. In the Second
Circuit, they do not.\50\
---------------------------------------------------------------------------
\50\ Id.
---------------------------------------------------------------------------
C. Material Witness Law
Title 18 U.S.C. Sec. 3144 provides that if ``it appears
from an affidavit filed by a party that the testimony of a
person is material in a criminal proceeding, and if it is shown
that it may become impracticable to secure the presence of the
person by subpoena, a judicial officer may order the arrest of
the person and treat the person in accordance with the
provisions of section 2142 of this title. No material witness
may be detained because of inability to comply with any
condition of release if the testimony of such witness can
adequately be secured by deposition, and if further detention
is not necessary to prevent a failure of justice. Release of a
material witness may be delayed for a reasonable period of time
until the deposition of the witness can be taken pursuant to
the Federal Rules of Criminal Procedure.'' The material witness
statute is available to both the Government and the defense to
assure testimony in criminal trials in the interest of justice.
The statute specifically limits this authority: no material
witness may be detained if: (1) the witness' testimony can be
adequately secured by deposition; and (2) further detention is
not necessary to prevent a failure of justice. However, release
may be delayed for a reasonable amount of time until the
material witness' deposition can be taken.
C. Oversight in the 107th and 108th Congress of the USA
PATRIOT Act
Due to the concerns that these new authorities could lead
to civil liberties violations, Congress included reporting
requirements and a sunset provision. Authorities under sections
201, 202, 203(b) and (d), 204, 206, 207, 209, 212, 214, 215,
217, 218, 220, 223 and 225 of the USA PATRIOT Act (Pub. L. No.
107-296) expire this year on December 31, 2005.
1. IG Report Under Section 1001 of the USA PATRIOT Act
The USA PATRIOT Act contains reporting requirements to
facilitate ongoing Congressional oversight of the Department of
Justice and the implementation of the Act. Section 1001 of the
USA PATRIOT Act requires the Inspector General of the
Department of Justice to report to the House and Senate
Committees on the Judiciary on a semi-annual basis on any
complaints of civil liberties abuses by the Department of
Justice. In accordance with Section 1001, the Department of
Justice has sent six reports entitled, ``Report to Congress on
the implementation of Section 1001 of the USA PATRIOT Act.''
2. No Evidence of Civil Liberty Violations Has Been
Presented to Congress
Democrat Senator Dianne Feinstein acknowledged the many
misconceptions surrounding the USA PATRIOT Act at the Senate
Judiciary Committee's hearing on October 21, 2003, regarding
Terrorism Prevention Laws.\51\ Senator Feinstein noted that
despite the fact that 34 states have passed resolutions or
ordinances against the USA PATRIOT Act mostly due to perceived
civil rights concerns-she has never had a single abuse of the
USA PATRIOT Act reported to her. She stated, ``There is a lot
of public uncertainty about this bill.'' She went on to note:
``I find it interesting that, of the 21,000 comments I've
received * * * to have half really against a bill that has
never come to the Hill is interesting. And to have a
substantial number relate to the National Entry-Exit
Registration System, which is not part of the bill, is also
interesting. Now what I had deduced from this is that there are
substantial uncertainty--perhaps some ignorance--about what
this bill actually does do'' \52\ This is interesting but
understandable, given that every legislative attempt to improve
national security is labeled ``PATRIOT II'' by groups opposed
to the USA PATRIOT Act.
---------------------------------------------------------------------------
\51\ U.S. Senate Judiciary Committee Hearing ``Terrorism Prevention
Laws'' October 21, 2003, p 15.
\52\ Id.
---------------------------------------------------------------------------
Senator Feinstein, moreover, has continued to request
information from the Department of Justice on whether
violations have occurred. An April 26, 2005 letter responds:
In a letter dated April 4, 2005, the American Civil
Liberties Union (``ACLU'') responded to your March 25
request for information regarding alleged ``abuses'' of
the USA PATRIOT Act. At your request, the Department of
Justice has reviewed the ACLU's allegations. It appears
that each matter cited by the ACLU either did not, in
fact, involve the USA PATRIOT Act or was an entirely
appropriate use of the Act. Thus, the ACLU is mistaken
in its assertion in the letter that ``the government
has abused and misused the Patriot Act repeatedly'' and
its press release, entitled ``Patriot Act Abuses and
Misuses Abound,'' that accompanied the letter. * * *''
\53\
---------------------------------------------------------------------------
\53\ April 26, 2005, Letter to the Honorable Diane Feinstein from
William E. Moschella.
---------------------------------------------------------------------------
3. Continued Oversight Through Letters to the Department of
Justice
Furthermore, both the House and the Senate Judiciary
Committees have conducted continuous oversight. The House
Judiciary Committee sent the Attorney General a letter on June
13, 2002, with 50 detailed questions on the implementation of
the USA PATRIOT Act.\54\ The questions were a result of
extensive consultation between the Majority and Minority
Committee counsel. Assistant Attorney General, Daniel Bryant,
responded to Chairman Sensenbrenner and Ranking Member Mr.
Conyers on July 26, 2002, providing lengthy responses to 28 out
of the 50 questions submitted.\55\ On August 26, 2002, Mr.
Bryant sent the responses to the remaining questions,\56\ after
sending responses to six of the questions to the House
Permanent Select Committee on Intelligence.
---------------------------------------------------------------------------
\54\ June 13, 2002, Letter to the Attorney General from F. James
Sensenbrenner, Jr., and John Conyers, Jr., requesting responses to 50
questions regarding the implementation of the PATRIOT Act.
\55\ July 26, 2002, Responses from Daniel J. Bryant to F. James
Sensenbrenner, Jr., and John Conyers, Jr., to 28 of the 50 questions
submitted to the Department of Justice on June 13, 2002.
\56\ August 26, 2002, Responses from Daniel J. Bryant to F. James
Sensenbrenner, Jr., and John Conyers, Jr., to the remaining questions
(six of the responses being sent to the House Permanent Select
Committee on Intelligence) submitted to the Department of Justice on
June 13, 2002.
---------------------------------------------------------------------------
Then, on September 20, 2002, Mr. Bryant sent the Minority
additional information regarding the Department of Justice's
responses to these questions.\57\ On April 1, 2003,
---------------------------------------------------------------------------
\57\ September 20, 2002, Additional information from Daniel J.
Bryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding
the Department's responses to questions submitted to the Department of
Justice on June 13, 2002.
---------------------------------------------------------------------------
Then, on September 20, 2002, Mr. Bryant sent the Minority
additional information regarding the Department of Justice's
responses to these questions.\57\ On April 1, 2003, Chairman
Sensenbrenner and Ranking Member Conyers sent a second letter
to the Department of Justice with additional questions
regarding the use of pre-existing authorities and the new
authorities conferred by the USA PATRIOT Act.\58\ Once again,
the questions were the product of bipartisan coordination by
Committee counsel. Acting Assistant Attorney General, Jamie E.
Brown, responded with a May 13, 2003 letter that answered the
questions she deemed relevant to the Department of Justice and
forwarded the remaining questions to the appropriate officials
at the Department of Homeland Security.\59\ On June 13, 2003,
the Assistant Secretary for Legislative Affairs at the
Department of Homeland Security, Pamela J. Turner, sent
responses to the forwarded questions.\60\ These items are
posted on the Committee's website and were the subject of
extensive press coverage.\61\
---------------------------------------------------------------------------
\57\ September 20, 2002, Additional information from Daniel Bryant
to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the
Department's responses to questions submitted to the Department of
Justice on June 13, 2002.
\58\ April 1, 2003, Letter to the Attorney General from F. James
Sensenbrenner, Jr., and John Conyers, Jr., regarding the use of
preexisting authorities and the new authorities conferred by the
PATRIOT Act.
\59\ May 13, 2003, Response from Jamie E. Brown to F. James
Sensenbrenner, Jr., and John Conyers, Jr., to letter sent to the
Department of Justice on April 1, 2003.
\60\ June 13, 2003, Responses from Pamela J. Turner at the
Department of Homeland Security to F. James Sensenbrenner, Jr., and
John Conyers, Jr., to questions forwarded from the Department of
Justice on June 13, 2003.
\61\ May 20, 2003, Press Release: ``Sensenbrenner/Conyers Release
Justice Department Oversight Answers Regarding USA PATRIOT Act and War
on Terrorism''; May 20, 2003, Curt Anderson, ``Fewer than 50 Held
Without Charges,'' Associated Press Online; May 20, 2003, Curt
Anderson, ``Government Has Held Fewer Than 50 People as Material
Witnesses in War on Terror,'' Associated Press Worldstream; May 20,
2003, ``Sensenbrenner, Conyers Release Justice Department Oversight
Answers Regarding USA PATRIOT Act, War on Terrorism,'' U.S. Newswire;
May 21, 2003, Kevin Johnson and Toni Locy, ``Justice Department Reveals
Tactics Used in Fight Against Terror,'' USA Today; July 22, 2003, Press
Release: ``Statement Regarding Inspector General's Report on Civil
Rights/Liberties Complaints''; July 22, 2003, Audrey Hudson, ``US
Probes PATRIOT Act Complaints, Substantiates Few,'' The Washington
Times; September 18, 2003, Press Release: ``Sensenbrenner Statement on
Justice Department's Disclosure of Number of Times Library and Business
Records have been Sought Under Section 215 of the USA PATRIOT Act'';
September 19, 2003, Audrey Hudson, ``Librarians Dispute Justice's Claim
on Use of PATRIOT Act,'' The Washington Times; September 24, 2002,
``Waiting for All the Answers,'' The Milwaukee Journal Sentinel Copley
News Service.
---------------------------------------------------------------------------
On November 20, 2003, Chairman Sensenbrenner and
Congressman Hostettler, Chairman of the Subcommittee on
Immigration, Border Security, and Claims, sent a letter to the
Comptroller General of the Government Accountability Office
(GAO) requesting a GAO study of the implementation of the USA
PATRIOT Act anti-money laundering provisions. This report was
released on June 6, 2005.
On May 19, 2005, Chairman Sensenbrenner sent a letter to
Attorney General Gonzales with questions for the record from
Members of the Committee.\62\ Assistant Attorney General
Moschella provided responses to 39 of the questions on July 12,
2005.\63\
---------------------------------------------------------------------------
\62\ May 19, 2005, Letter to the Attorney General from F. James
Sensenbrenner, Jr., requesting responses to 44 follow-up questions
posed during hearings on implementation of the USA PATRIOT Act.
\63\ July 12, 2005, Letter to F. James Sensenbrenner, Jr., from
William E. Moschella responding to 39 follow-up question on
implementation of the USA PATRIOT Act.
---------------------------------------------------------------------------
On May 19, 2005, Chairman Sensenbrenner also sent a letter
to Attorney General Gonzales with ten questions on specific
provisions of the USA PATRIOT Act.\64\ On June 10, 2005 the
Department responded in a classified letter.\65\
---------------------------------------------------------------------------
\64\ May 19, 2005, Letter to the Attorney General from F. James
Sensenbrenner, Jr., requesting responses to 10 questions on provisions
of the USA PATRIOT Act.
\65\ June 10, 2005, Letter to F. James Sensenbrenner, Jr., from
William E. Moschella responding to 10 questions on provisions of the
USA PATRIOT Act.
---------------------------------------------------------------------------
On July 1, 2005, Chairman Sensenbrenner sent a letter to
Attorney General Gonzales requesting additional information on
behalf of Minority Members of the Committee on the use of the
USA PATRIOT Act.\66\ On July 12, 2005 Assistant Attorney
General Moschella responded.\67\
---------------------------------------------------------------------------
\66\ July 1, 2005, Letter to the Attorney General from F. James
Sensenbrenner, Jr., requesting responses to 18 follow-up questions
posed during hearings on implementation of the USA PATRIOT Act.
\67\ July 12, 2005, Letter to F. James Sensenbrenner, Jr., from
William E. Moschella responding to 18 follow-up questions posed during
hearings on implementation of the USA PATRIOT Act.
---------------------------------------------------------------------------
4. Continued Oversight Through Hearings
The House Judiciary Committee also has held hearings as
part of its ongoing oversight efforts. On May 20, 2003, the
Committee's Subcommittee on the Constitution held an oversight
hearing entitled, ``Anti-Terrorism Investigations and the
Fourth Amendment After September 11th: Where and When Can
Government Go to Prevent Terrorist Attacks.'' Then, on June 5,
2003, the Attorney General testified before the full Committee
on the Judiciary at an oversight hearing on the United States
Department of Justice. Both the hearing on May 20 and the
hearing on June 5 discussed oversight aspects of the USA
PATRIOT Act.
The Senate Judiciary Committee has been active in its
oversight responsibilities regarding the implementation of the
USA PATRIOT Act as well. The Senate Judiciary Committee held
hearings on December 6, 2001; April 17, 2002; June 6, 2002;
July 25, 2002; September 10, 2002; and July 23, 2003; September
22, 2004; April 5, 2005; and May 10, 2005--all in regard to the
USA PATRIOT Act or oversight efforts at the Department of
Justice. Counsel to the Subcommittee on Crime, Terrorism, and
Homeland Security have monitored these activities and are in
regular contact with their counterparts in the other body.
5. Continued Oversight Through Briefings
Further, the Subcommittee on Crime, Terrorism, and Homeland
Security of this Committee requested that officials from the
Department of Justice appear and answer questions regarding the
implementation of the USA PATRIOT Act. In response to our
requests, the Department of Justice gave briefings to Members,
counsel, and staff. During a briefing held on August 7, 2003,
Department officials covered the long-standing authority for
law enforcement to conduct delayed searches and collect
business records, as well as the effect of the USA PATRIOT Act
on those authorities. During a second briefing, held on
February 3, 2004, the Department of Justice discussed its views
of S. 1709, the ``Security and Freedom Ensured (SAFE) Act of
2003,'' and H.R. 3352, the House companion bill, as both bills
proposed changes to the USA PATRIOT Act.
The Department of Justice has also provided two classified
briefings on the use of the Foreign Intelligence Surveillance
Act (FISA) under the USA PATRIOT Act for Members of the
Judiciary Committee. On June 10, 2003, and October 29, 2003,
the Justice Department provided these briefings. The Department
also provided a law enforcement sensitive briefing on FISA to
the House Judiciary Committee Members and staff on March 22,
2005 and a classified briefing on June 7, 2005.
Hearings
The full Committee on the Judiciary held 3 days of hearings
on the reauthorization of the USA PATRIOT Act on April 6, June
8, and June 10 of 2005; and the Committee's Subcommittee on
Crime, Terrorism, and Homeland Security held a total of 9
hearings on April 19, April 21, April 26, April 28, May 3, May
5, May 10, and May 26 of 2005. On April 28 the Subcommittee on
Crime, Terrorism, and Homeland Security held two hearings.
Committee Consideration
On July 13, 2005, the Committee met in open session and
ordered favorably reported the bill H.R. 3199 with amendment by
a recorded vote of 23 yeas to 14 nays and 2 passes, a quorum
being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following roll call votes occurred during the Committee's
consideration of H.R. 3199.
1. An amendment was offered by Mr. Lungren to section 2702
of title 18. Section 2702 of title 18 was amended by section
212 of the USA PATRIOT Act in 2001 to allow Internet service
providers to voluntarily disclose the contents of electronic
communications and subscriber information in emergencies
involving immediate danger of death or serious physical injury.
The amendment would require the Attorney General to report
annually to the Judiciary Committees of the House and Senate
and set forth the number of accounts subject to a voluntary
disclosure under section 212. The report would also have to
summarize the basis for disclosure in certain circumstances.
The amendment passed by voice vote.
2. An amendment was offered by Mr. Nadler to amend section
501 of the Foreign Intelligence Surveillance Act of 1978 to
change the current standard necessary for obtaining a section
215 order to request business records held by third parties to
require a showing of ``specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power.'' The
amendment also would allow the recipient to challenge the order
and to petition the court to set aside the non-disclosure
requirement. Theamendment failed by a vote of 12 yeas and 23
nays.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins.....................................................
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 23
----------------------------------------------------------------------------------------------------------------
3. An amendment was offered by Mr. Flake to amend section
8(c) of H.R. 3199 to clarify further that a person can disclose
to an attorney the receipt of a 215 order not only to respond,
but to challenge, the order. The amendment passed by voice
vote.
4. An amendment was offered by Ms. Waters to amend section
505 of the USA PATRIOT Act to prohibit the issuance of national
security letters for records from health insurance companies.
The amendment failed by a recorded vote of 14 yeas and 23 nays.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 23
----------------------------------------------------------------------------------------------------------------
5. An amendment was offered by Mr. Issa to amend section
105(c) of the Foreign Intelligence Surveillance Act of 1978.
This section was modified by section 206 of the USA PATRIOT Act
to authorize roving wiretaps in FISA investigations. The
amendment will (1) require applications for roving wiretap
surveillance authority to include specific facts upon which the
court can make its determination and (2) if the authority is
granted, require the applicant to notify the court within 10
days of the initiation of surveillance on a new facility or
place and to notify the court of the facts and circumstances
relied upon by the applicant to justify the belief that the
target would be using each new facility. The amendment passed
by a recorded vote of 34 yeas and 0 nays.
ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 34 0
----------------------------------------------------------------------------------------------------------------
6. An amendment was offered by Mr. Scott to second the
amendment offered by Mr. Lungren for a 10-year sunset for
sections 206 and 215 of the USA PATRIOT Act. The amendment
would have reduced the 10-year to a 4-year sunset. The
amendment failed by a recorded vote of 15 yeas and 21 nays.
ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 21
----------------------------------------------------------------------------------------------------------------
7. An amendment was offered by Mr. Nadler to second the
amendment offered by Mr. Lungren for a 10-year sunset for
sections 206 and 215 of the USA PATRIOT Act. The amendment
would have reduced the 10-year to a 6-year sunset. The
amendment failed by a recorded vote of 9 yeas and 18 nays.
ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller......................................................
Mr. Issa........................................................ X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen..................................................
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 9 18
----------------------------------------------------------------------------------------------------------------
8. An amendment was offered by Mr. Lungren that would
provide a sunset for sections 206 and 215 of the USA PATRIOT
Act. Under the amendment these provisions would expire in 10
years. This amendment passed by a recorded vote of 26 yeas and
2 nays.
ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler..................................................
Mr. Green....................................................... X
Mr. Keller......................................................
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 26 2
----------------------------------------------------------------------------------------------------------------
9. An amendment was offered by Mr. Nadler (for himself and
Ms. Lofgren) to strike section 3 of H.R. 3199. Section 3
repeals section 224 of the USA PATRIOT Act that states
authorities under sections 201, 202, 203(b) and (d), 204, 206,
207, 209, 212, 214, 215, 217, 218, 220, 223, and 225 of the USA
PATRIOT Act (P.L. 107-296) expire on December 31, 2005. Mr.
Lungren's amendment that passed would place a 10-year sunset on
two of those sixteen provisions. Mr. Nadler's amendment would
place a 10-year sunset on the remaining fourteen sections. The
amendment failed by a recorded vote of 12 yeas to 21 nays.
ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 21
----------------------------------------------------------------------------------------------------------------
10. An amendment was offered by Mr. Van Hollen (for himself
and Mr. Conyers) to amend section 2339A(a) of title 18 to
specify that the transfer of a firearm to an individual whose
name appears in the Violent Gang and Terrorist Organization
File maintained by the Attorney General was under covered. The
amendment failed by a recorded vote of 15 yeas to 22 nays.
ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 22
----------------------------------------------------------------------------------------------------------------
11. An amendment was offered by Mr. Schiff to prohibit
surveillance for planning of terrorist attacks on mass
transportation. The amendment passed by voice vote.
12. An amendment was offered by Ms. Lofgren to amend
section 2339A of title 18 to specify that the transfer of 50-
caliber sniper weapons to a member of al Qaeda. The amendment
failed by a recorded vote of 13 yeas to 22 nays.
ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 22
----------------------------------------------------------------------------------------------------------------
13. An amendment was offered by Ms. Lofgren to amend
section 1001 of USA PATRIOT Act to require the Inspector
General for the Department of Justice to conduct a review of
material witness detentions under section 3144 of title 18. The
amendment passed by a recorded vote of 34 yeas to 0 nays.
ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks......................................................
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 34 0
----------------------------------------------------------------------------------------------------------------
14. An amendment was offered by Mr. Schiff to amend section
105(c) of the Foreign Intelligence Surveillance Act to require
that where the identity of the target of surveillance is not
known, a specific description is provided of the target. The
amendment failed by a recorded vote of 15 yeas to 22 nays.
ROLLCALL NO. 11
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 22
----------------------------------------------------------------------------------------------------------------
15. An amendment was offered by Mr. Watt to require that
when a warrant is executed in a district other than the
district in which it was issued, a recipient may seek to quash
that warrant in the district in which it is served, or, if the
``person is a corporation,'' in any district in the State
wherein the corporation was incorporated. The amendment failed
by a recorded vote of 14 yeas to 24 nays.
ROLLCALL NO. 12
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 24
----------------------------------------------------------------------------------------------------------------
16. An amendment was offered en bloc by Mr. Schiff to,
among other things, extend civil forfeiture in certain
circumstances to ``trafficking in nuclear, chemical,
biological, or radiological weapons technology or material;''
amend the current definition of ``federal crime of terrorism,''
to include new predicate terrorism offenses; and add new
``wiretap predicates'' under section 2516 of title 18 of the
Federal criminal code that relate to crimes of terrorism. The
amendment passed by voice vote.
17. An amendment was offered by Mr. Schiff to eliminate the
nondisclosure requirement of a Foreign Intelligence
Surveillance Court order for business records from a library or
bookstore, or for medical records, when an individual is a
citizen of the United States, at the conclusion of
investigation. The amendment failed by a recorded vote of 13
yeas and 20 nays.
ROLLCALL NO. 13
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 20
----------------------------------------------------------------------------------------------------------------
18. An amendment was offered by Mr. Wexler to amend section
2339A(a) of title 18, the material support to terrorists
provisions of the Federal criminal code, by inserting ``reveals
any information pertaining to the identity of undercover
intelligence officers, agents, informants, and sources that the
person has or should have reason to believe would be sufficient
to be used to identify a United States intelligence
operative.'' The amendment failed by voice vote.
19. An amendment was offered by Ms. Lofgren that no Act of
Congress shall be construed to suspend habeas corpus. The
amendment failed by a recorded vote of 14 yeas to 23 nays.
ROLLCALL NO. 14
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 23
----------------------------------------------------------------------------------------------------------------
20. An amendment was offered by Mr. Watt (for himself and
Ms. Waters) to strike section 8(c) of H.R. 3199 to eliminate
the nondisclosure requirement of a Foreign Intelligence
Surveillance Court order for business records in a national
security case unless law enforcement in an ``application for
such an order provides specific and articulable facts giving
the applicant reason to believe that disclosure would result''
in adverse affects specified in the amendment. The amendment
failed by a recorded vote of 13 yeas to 23 nays.
ROLLCALL NO. 15
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 23
----------------------------------------------------------------------------------------------------------------
21. An amendment was offered by Mr. Scott to entitle a
person who prevails on a challenge of the legality of a section
215 order to reasonable attorneys fees, if any, incurred by the
person in pursuing the challenge. The amendment failed by a
recorded vote of 14 yeas to 22 nays.
ROLLCALL NO. 16
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 22
----------------------------------------------------------------------------------------------------------------
22. An amendment was offered by Mr. Schiff to extend for 3
years the sunset provision relating to individual terrorists as
agents of foreign powers. The amendment failed by a recorded
vote of 14 yeas to 22 nays.
ROLLCALL NO. 17
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 22
----------------------------------------------------------------------------------------------------------------
23. An amendment was offered by Ms. Jackson Lee to provide
notice of a physical search or surveillance if the subject of
such search or surveillance is a United States person who is
not an agent of a foreign power. The amendment failed by a
recorded vote of 10 yeas to 23 nays.
ROLLCALL NO. 18
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 10 23
----------------------------------------------------------------------------------------------------------------
24. An amendment was offered by Mr. Flake (for himself and
Mr. Nadler) to section 3103a(b)(3) of title 18 to clarify a
reasonable period of time for notice of a search warrant to
with a period of time of up to 180 days, with extensions of up
to 90 day increments. The amendment passed by voice vote.
25. An amendment was offered by Mr. Conyers to create a
statutory suppression rule for electronic surveillance and to
require increased reporting. The amendment failed by a recorded
vote of 14 yeas to 23 nays.
ROLLCALL NO. 19
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 23
----------------------------------------------------------------------------------------------------------------
26. An amendment was offered by Mr. Nadler that would amend
the laws governing national security letters to require the
government to demonstrate why the request should not be
disclosed. The amendment failed by a recorded vote of 14 yeas
to 23 nays.
ROLLCALL NO. 20
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 14 23
----------------------------------------------------------------------------------------------------------------
27. An amendment was offered by Mr. Scott to amend section
105(c) of the Foreign Intelligence Surveillance Act to require
surveillance may be directed at a place or facility only for
such time as the applicant believes that such facility or place
is being used, or about to be used by the target of the
surveillance. The amendment failed by a recorded vote of 13
yeas to 23 nays.
ROLLCALL NO. 21
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 23
----------------------------------------------------------------------------------------------------------------
28. An amendment was offered by Mr. Schiff that would
require public disclosure of the use of national security
letters. The amendment failed by a recorded vote of 15 yeas and
21 nays.
ROLLCALL NO. 22
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 21
----------------------------------------------------------------------------------------------------------------
29. An amendment was offered by Ms. Jackson Lee that would
amend section 501(a)(1) of the Foreign Intelligence
Surveillance Act to exclude medical records from the types of
business records a Foreign Intelligence Surveillance Court
order may seek. The amendment failed by a recorded vote of 12
yeas to 24 nays.
ROLLCALL NO. 23
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 24
----------------------------------------------------------------------------------------------------------------
30. An amendment was offered by Mr. Van Hollen to require
the Inspector General of the Department of Justice to review
the progress of the development of procedures established by
the Terrorist Screening Center for the removal of misidentified
individuals from the Terrorist Screening Database. The
amendment failed by a recorded vote of 15 yeas to 23 nays.
ROLLCALL NO. 24
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 23
----------------------------------------------------------------------------------------------------------------
31. An amendment was offered by Mr. Nadler to authorize
disclosure of the receipt of a national security letter to
qualified persons, as defined by the amendment. The amendment
failed by a recorded vote of 16 yeas to 23 nays.
ROLLCALL NO. 25
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 16 23
----------------------------------------------------------------------------------------------------------------
32. An amendment was offered by Mr. Scott to broaden the
exemption in the prohibition of providing material support to
terrorists to also cover ``medical services, drinking water,
food, children's clothing, educational supplies or services,
and other humanitarian materials and services that could not be
diverted to military ends'' to terrorists. The amendment failed
by a recorded vote of 7 yeas to 31 nays.
ROLLCALL NO. 26
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 7 31
----------------------------------------------------------------------------------------------------------------
33. An amendment was offered by Ms. Jackson Lee to require
the Inspector General of the Department of Justice to review
the use of any investigative authority under the Attorney
General Guidelines on General Crimes, Racketeering Enterprises
and Domestic Security/Terrorism Investigations beyond those
approved by Attorney General Dick Thornburg in March 21, 1989.
The amendment failed by a recorded vote of 13 yeas to 25 nays.
ROLLCALL NO. 27
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 13 25
----------------------------------------------------------------------------------------------------------------
34. An amendment was offered by Nadler (for himself and Mr.
Scott) to amend the statutes authorizing national security
letters regarding judicial review. The amendment failed by
voice vote.
35. Motion to report H.R. 3199, as amended was agreed to by
a roll call vote of 23 yeas to 14 nays and 2 pass.
ROLLCALL NO. 28
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus...................................................... X
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... Pass
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... Pass
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 23 14 2 Pass
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3199, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
July 18, 2005.
Hon. F. James Sensenbrenner, Jr.,
Chairman, Committee on the Judiciary
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3199, the USA
PATRIOT and Terrorism Prevention Reauthorization Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
H.R. 3199--USA PATRIOT and Terrorism Prevention Reauthorization Act of
2005
CBO estimates that implementing H.R. 3199 would have no
significant cost to the federal government. Enacting the bill
could affect direct spending and revenues, but CBO estimates
that any such effects would not be significant.
The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001 (Public Law 107-56), as well as the
Intelligence Reform and Terrorism Prevention Act of 2004
(Public Law 108-458), expanded the powers of federal law
enforcement and intelligence agencies to investigate and
prosecute terrorist acts. H.R. 3199 would permanently authorize
certain provisions of these acts, many of which will otherwise
expire on December 31, 2005. In addition, the bill would make
several other changes to the laws relating to investigations of
potential terrorist activity.
Because those prosecuted and convicted under H.R. 3199
could be subject to civil and criminal fines, the federal
government might collect additional fines if the legislation is
enacted. Collections of civil fines are recorded in the budget
as revenues. Criminal fines are recorded as revenues, then
deposited in the Crime Victims Fund and later spent. CBO
expects that any additional revenues and direct spending would
not be significant because of the relatively small number of
cases affected.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of that act any legislative
provisions that are necessary for national security. CBO has
determined that the provisions of this bill are either excluded
from UMRA because they are necessary for the national security
or they contain no intergovernmental or private-sector
mandates.
On July 18, 2005, CBO transmitted a cost estimate for H.R.
3199 as ordered reported by the House Permanent Select
Committee on Intelligence on July 13, 2005. The two versions of
the bill are similar and the cost estimates are identical.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
3199, will continue to provide enhanced law enforcement and
intelligence investigative tools and improved information
sharing while protecting civil liberties. By clarifying the
authority provided under the USA PATRIOT Act and by eliminating
much of the sunset provision in that Act and the Intelligence
Reform and Terrorism Prevent Act, this bill provides certainty
in the Federal criminal law, ensures that the metaphorical
``Wall'' is not rebuilt and thus information sharing can
continue to improve between law enforcement and the
Intelligence Community, and maintains the advancements in law
enforcement technology to investigate and thwart terrorist and
criminal activities.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article 1 of the Constitution.
Section-by-Section Analysis and Discussion
The section-by-section represents the bill as reported by
the Committee on the Judiciary.
Section 1. Short Title
This Act would be cited as the ``USA PATRIOT and Terrorism
Prevention Reauthorization Act of 2005.'' Because the Act would
repeal sunsets under the USA PATRIOT Act and the Intelligence
Reform and Terrorism Prevention Act of 2004, the title refers
to both Acts.
Section 2. References to PATRIOT Act
This section states that for this Reauthorization Act, the
Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism shall be
referred to as the USA PATRIOT Act.
Section 3. Repeal of USA PATRIOT Act sunset provision
This section repeals section 224 of the USA PATRIOT Act
that stated authorities under sections 201, 202, 203(b) and
(d), 204, 207, 209, 212, 214, 217, 218, 220, 223 and 225 of the
USA PATRIOT Act (Pub. L. No. 107-296) would expire this year on
December 31, 2005. The provision sunsetting sections 206 and
215 is extended until December 31, 2015.
The twelve hearings provided evidence that parts of the USA
PATRIOT Act needed to be clarified, as Attorney General
Gonzales and other Department of Justice officials have
testified. However, witnesses did not provide any evidence that
the Government or law enforcement was abusing the authorities
of the USA PATRIOT Act to the Congress or to the Department of
Justice Inspector General. The IG, as required by section 1001
of the USA PATRIOT Act, has issued 6 semiannual reports and has
not found abuse by Department of Justice employees of these new
authorities.
Section 4. Repeal of sunset of Individual Terrorists as Agents of
Foreign Powers
Section 4 of this bill repeals section 6001(b) of the
Intelligence Reform and Terrorism Prevention Act (IRTPA).
Section 6001(b) sunsets section 6001 of IRTPA, which provided a
additional definition for ``Agent of a Foreign Power,'' to
cover the ``lone wolf'' under 50 U.S.C. 1801(b)(1). Section
1801(b)(1) defined ``Agent of a foreign power'' for any person
other than a United States person, who--
(A) acts in the United States as an officer or
employee of a foreign power, or as a member of a
foreign power as defined in subsection (a)(4) of this
section;
(B) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities in the
United States contrary to the interests of the United
States, when the circumstances of such person's
presence in the United States indicate that such person
may engage in such activities in the United States, or
when such person knowingly aids or abets any person in
the conduct of such activities or knowingly conspires
with any person to engage in such activities;
Section 6001 of the IRTPA added new subparagraph C to the
definition, which states ``Agent of a foreign power'' for any
person other than a United States person, includes a person who
``engages in international terrorism or activities in
preparation thereof;''.
Section 6001(b) addressed oversight concerns about the
provision, by applying the USA PATRIOT Act sunset to the
provision so that definition sunsets on December 31, 2005.
Section 5. Repeal of sunset provision relating to section 2332B and the
Material Support sections of Title 18, United States Code
This section repeals section 6603(g) of the IRTPA, which
would sunset section 6603, the ``Additions to Offense of
Providing Material Support to Terrorism''. This sunset is
problematic in many respects. First, it sunsets a criminal
offense and not a law enforcement tool and, second, the sunset
would effectively make the underlying provision
unconstitutional. Section 805(a)(2)(B) of the USA PATRIOT Act
was amended by section 6603 of the IRTPA of 2004, which covers
the prohibition against providing material support to
terrorists. The changes made in the IRTPA actually addressed
court concerns on the constitutionality of the Federal crime of
providing material support to terrorists.
On May 10, 2005, the Subcommittee on Crime, Terrorism, and
Homeland Security held a hearing on the material support
provision as enhanced by the USA PATRIOT Act in 2001 and the
IRTPA of 2004. The ban on providing material support to
terrorists pre-dates the USA PATRIOT Act, as it was created in
1996 in the Antiterrorism and Effective Death Penalty Act. The
1996 Act, in part, was in response to the Oklahoma City and
first World Trade Center terrorist attacks and made it illegal
to knowingly provide material support to a group designated as
a Foreign Terrorist Organization, better known as an FTO.
In 1998 a group, led by the Humanitarian Law Project,
challenged the constitutionality of the ban, arguing it the
violated the First Amendment. Both the 9th Circuit District
Court and the Appeals Court rejected most of the First
Amendment claims. The Appeals Court, for instance, rejected the
free-association claim, finding that the statute does not
prohibit membership in a group or support for the political
goals of a group. The Appeals Court pointed out that ``What
[the law] prohibits is the act of giving material support, and
there is no constitutional right to facilitate terrorism by
giving terrorists the weapons and explosives with which to
carry out their grisly missions.''
The 9th Circuit also rejected the plaintiffs' contention
that the law could be interpreted to prohibit the giving of
material support to the so-called terrorist groups' nonviolent
humanitarian and political activities, concluding that the
First Amendment did not create a right to give funds to
terrorist groups. Money is fungible and the Court recognized
that ``when someone makes a donation to [terrorist groups],
there is no way to tell how the donation is used.''
The Court did find that the language was too vague in
areas, and focused on the terms ``training'' and ``personnel.''
The 9th Circuit also found in another case that the term
``expert advice or assistance'' was unconstitutionally vague.
``Expert advice or assistance'' is language from the USA
PATRIOT Act. Congress corrected these vagueness problems with
section 6603 of the IRTPA of 2004.
On December 21, 2004, the 9th Circuit Appeals Court
recognized this correction in lifting an injunction that had
barred the Government from prosecuting a Los Angeles group, if
the group aided organizations classified as supporting
terrorism. According to an Associated Press story dated
December 22, 2004, the Court ``said [its December 21] decision
in Humanitarian Law Project v. Dept. of Justice was based
partly on the IRTPA of 2004, which [President] Bush signed into
law on [December 17, 2004].''
Section 6. Sharing of electronic, wire, and oral interception
information
Section 6 responds to concerns that additional judicial
oversight was needed for the sharing of criminal wiretap
information to the Intelligence Community. Section 6 of the Act
amends section 2517(6) of title 18, which was added by section
203(b) of the USA PATRIOT Act by requiring that ``an officer or
attorney who makes a disclosure under this subsection shall,
within a reasonable time after that disclosure, notify the
court that issued the wiretap order that such information was
shared.'' The Department of Justice stated at one of the many
hearings on the USA PATRIOT Act that they could ``take [such a
proposal] under consideration and have a discussion about
[it].'' But ``[w]ith respect to 203(d), relating to that
sharing of information, [it] would put an unreasonable burden
in terms of how we seek to exchange the information in a task
force [i.e., JTTF and NTTC] approach.''
On April 19, 2005, the Subcommittee on Crime, Terrorism,
and Homeland Security held a hearing on Section 203, which
facilitates effective sharing of information collected through
the use of criminal wiretaps, grand juries, and other criminal
investigations, with Executive Branch officials. To protect
privacy, the USA PATRIOT Act: (1) limited such disclosures to
foreign intelligence and counterintelligence information, as
defined by statute; (2) restricted disclosure to officials with
a need to know in performance of official duties; and (3)
retained the limitations on public or other unauthorized
disclosure. Prior to passage of the USA PATRIOT Act, the law
hampered law enforcement from sharing information with or
receiving information from other Government agencies outside of
law enforcement that might nevertheless relate to terrorist
activities or national security.
Section 203(b) deals with information obtained through a
criminal wiretap. The section amended section 2517 of title 18
to allow law enforcement officials to share foreign
intelligence or counterintelligence (as defined in section 3 of
the National Security Act of 1947 (50 U.S.C. 401a)), or foreign
intelligence information (as defined in subsection (19) of
section 2510 of this title) obtained through a criminal wiretap
with law enforcement, intelligence, protective, immigration,
national defense, or national security personnel for use only
as necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of
such information. The language in the USA PATRIOT Act is
similar to section 103 of H.R. 2975, the PATRIOT Act that the
House Judiciary Committee reported favorably with unanimous
consent.
While some argued that the Committee should require similar
notice to a court with regard to section 203(d), which
authorizes the sharing of information from a criminal
investigation, the Committee concluded that such a change would
effectively eliminate the ability of law enforcement and anti-
terrorism task forces--such as the Joint Terrorism Task Forces
(JTTFs)--to operate. Much of that information used by these
task forces is not under a court order requiring notice. To
require notice defeats the purpose of section 203(d) and would
create a statutory ``wall'' preventing vital information from
being shared.
Section 7. Duration of FISA of Non-United States persons
Prior to enactment of the USA PATRIOT Act, the Government
had 90 days to carry out surveillance and 45 days to conduct a
physical search under a FISA court order before seeking an
extension. Because it often takes longer than these established
periods to get on the premises or to conduct electronic
surveillance, and the delay in applying for an extension or
reapplying for a new order posed a threat to national security.
To address this problem, the USA PATRIOT Act added 30 days to
the authorized period for surveillance from 90 days to 120
days. It also extended the period for physical searches from 45
days to 90 days.
Attorney General Gonzalez requested at the April 6, 2005,
hearing before the Full Committee that section 207 of the USA
PATRIOT Act be amended. He stated: ``Another important FISA-
related Patriot Act provision is Section 207. Prior to this
law, the Justice Department invested considerable time
returning to court to renew existing orders. Section 207
substantially reduced this investment of time by increasing the
maximum time duration for FISA, electronic surveillance, and
physical search orders.''
The Department of Justice estimates that the enactment of
section 207 has saved nearly 60,000 attorney hours, or 30
lawyers a year's of work. According to the Justice Department,
this estimate did not account for time saved by FBI agents,
administrative staff, and the judiciary. This section of H.R.
3199 would extend the maximum duration of orders for electronic
surveillance and physical search targeted against agents of
foreign powers who are not United States persons. Specifically,
initial orders authorizing searches and electronic surveillance
would be for periods of up to 120 days, and renewal orders
would extend for periods of up to one year.
The USA PATRIOT Act did not amend the permissible duration
of orders for pen register and trap and trace surveillance
under FISA. The current duration of initial and renewal orders
for installation and use of a pen register or trap and trace
device is for a period not to exceed 90 days. This section
would extend the maximum duration of both initial and renewal
orders for pen register and trap and trace surveillance, in
cases where the Government certified that the information
likely to be obtained is foreign intelligence information not
concerning a United States person, for a period of one year.
This section would allow the United States and the Foreign
Intelligence Surveillance Court to focus more scrutiny on
applications for surveillance involving United States persons.
This section would also allow intelligence officials to spend
more time investigating potential terrorist or espionage
activity by non-U.S. persons, rather than wasting valuable time
returning to the Foreign Intelligence Surveillance Court to
extend surveillance against such persons that had already been
authorized. Indeed, the Department of Justice estimates that
had these proposals been included in the USA PATRIOT Act, the
Department would have saved 25,000 attorney hours. These ideas
were specifically endorsed in the recent report of the WMD
Commission, which said that the amendments would allow the
Department both to ``focus their attention where it is most
needed'' and maintain the current level of oversight paid to
cases implicating the civil liberties of Americans.
Section 8. Access to certain business records under section 501 of FISA
Section 7 of the bill would clarify that a recipient of a
215 order may consult with a lawyer and the appropriate people
necessary to respond to the order. The section would also
clarify that the FISA order may be challenged.
Additionally, the language amends section 215 to clarify
that the court has discretion to issue an order. The amending
language states that ``if a judge finds that the application
meets the requirements of subsections (a) and (b), the judge
shall enter an ex parte order as requested, or as modified,
approving the release of records.'' The current language is
unclear with respect to the discretion it provides to judges
because it states that the ``judge shall'' issue an order and
later mentions that this order will only be issued ``if the
judge finds that the requirements have been met.'' The language
does not clearly specify what those requirements, so the
language in H.R. 3199 does.
As was highlighted by the hearings held by this Committee,
for years prior to and since enactment of the USA PATRIOT Act,
law enforcement could obtain records from all manner of
businesses through grand jury issued subpoenas. Section 215 of
the USA PATRIOT Act created similar authority, but with more
stringent requirements. Section 215 authorizes the FISA court
the discretion to issue an order for business records related
to ``international terrorism and clandestine intelligence
activities.'' These judicial orders conceivably could be issued
to bookstores or libraries, but section 215 does not single
them out. Section 215 has a very narrow scope that can only be
used (1) ``to obtain foreign intelligence information not
concerning a United States person''; or (2) ``to protect
against international terrorism or clandestine intelligence
activities.'' 50 U.S.C. Sec. 1861(b)(2).
FBI agents cannot obtain records under section 215 unless
they receive a court order. Grand jury subpoenas, by contrast,
do not require judicial approval. Agents cannot use section 215
to unilaterally compel libraries or any other entity to turn
over their records. Agents must obtain such documents only by
appearing before the FISA court and convincing the court that
these business records are needed. See 50 U.S.C. Sec. 1861(b).
Additionally, section 215 goes to great lengths to preserve the
First Amendment rights of libraries, their patrons, and other
affected entities as it expressly provides that the FBI cannot
conduct investigations ``of a United States person solely on
the basis of activities protected by the first amendment to the
Constitution of the United States.'' 50 U.S.C. Sec. 1861(a)(2).
Section 215 provides for thorough congressional oversight;
every six months, the Attorney General is required to ``fully
inform'' Congress on the number of times agents have sought a
court order under section 215, as well as the number of times
such requests were granted, modified, or denied. See 50 U.S.C.
Sec. 1862.
Section 9. Report relating to emergency disclosures under section 212
of the USA PATRIOT Act
This section would amend section 2702 of title 18, as
amended by section 212 of the USA PATRIOT Act. Section 212
allowed Internet service providers to voluntarily disclose the
contents of electronic communications as well as subscriber
information in emergencies involving immediate danger of death
or serious physical injury. To address concerns that this
authority, in certain circumstances, is not subject to adequate
congressional, judicial or public oversight (particularly in
situations where the authority is used but criminal charges do
not result) the amendment would require the Attorney General to
report annually to the Judiciary Committees of the House and
Senate and set forth the number of accounts subject to a
section 212 disclosure. The report would also have to summarize
the basis for disclosure in certain circumstances. The
Committee believes this would strengthen oversight on the use
of thisauthority without undermining important law enforcement
prerogatives, and without tipping off perpetrators while simultaneously
preserving the vitality of this life saving authority.
Section 10. Specificity and notification for roving surveillance under
the Foreign Intelligence Surveillance Act
Section 206 of the PATRIOT Act enabled use of roving
wiretaps in FISA investigations. The Amendment would require
intelligence investigators to notify to the FISA Court within
10 days each time it initiates surveillance on a new
communications facility pursuant to a FISA roving wiretap. By
requiring that the FISA Court be regularly informed on an
ongoing basis for all multi-point wiretaps, the Amendment would
address Members' concerns that the open-ended authorization to
surveil new locations could be abused. The Amendment does this
by providing an extra layer of judicial review and ensures that
intelligence investigators will not abuse the multi-point
authority. This approach is superior in the FISA context (where
surveillance is often long-running and subject to extensive and
sophisticated counter-surveillance measures) than a proximity
test or ascertainment requirement that could endanger an
investigation or field agents conducting the investigation.
Section 11. Prohibition on planning terrorist attacks on mass
transportation
This section amends section 1993a of title 18 of the
Federal Criminal code that protects against Terrorist attacks
and other acts of violence against mass transportation systems.
Section 1993 of title 18 covers attacks on mass transportation
systems but did not cover the planning for such attacks. This
provision closes that loophole and makes it a crime to
``surveil, photograph, videotape, diagram, or to otherwise
collect information with the intent to plan or assist in
planning any of the acts described'' in paragraphs (1)-(5) of
section 1993a.
Section 12. Enhanced review of material witness detention
This section would amend section 1001 of the USA PATRIOT
Act to require the Inspector General for the Department of
Justice to conduct a review of material witness detentions
under section 3144 of title 18.
Section 13. Forfeiture
The USA PATRIOT Act amended 18 U.S.C. Sec. 981 to expressly
provide that any property used to commit or facilitate the
commission of, derived from, or otherwise involved in a Federal
crime of terrorism (as defined in 18 U.S.C. Sec. 2331) is
subject to civil forfeiture provisions. Prior to the USA
PATRIOT Act, only the ``proceeds'' of a crime of terrorism were
subject to civil forfeiture provisions. This amendment would
extend forfeiture to ``trafficking in nuclear, chemical,
biological, or radiological weapons technology or material,''
after ''activities''.
Section 14. Predicate offenses
This section amended the current definition of ``federal
crime of terrorism,'' to include new predicate offenses. This
list of predicate offenses is referenced by other sections of
the Act, and certain provisions of the Act are made applicable
to offenses appearing on this list. This section adds crimes
relating to military-type training from a foreign terrorist
organization; and relating to nuclear and weapons of mass
destruction threats.
Section 15. Wiretap predicates
``Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, 18 U.S.C. Sec. Sec. 2510-2522 (1994 & Supp. II
1996), requires the government, unless otherwise permitted, to
obtain an order of a court before conducting electronic
surveillance. The government is permitted to seek such orders
only in connection with the investigation of the criminal
offenses enumerated in section 2516 of title 18.'' \68\ This
section added new ``wiretap predicates'' under section 2516 of
title 18 of the Federal criminal code that relate to crimes of
terrorism.
---------------------------------------------------------------------------
\68\ October 17, 2000, Memorandum for the Counsel, Office of
Intelligence Policy and Review, U.S. DOJ.
---------------------------------------------------------------------------
Section 16. Defines reasonable period of delay under the USA PATRIOT
Act
Contrary to reports, the USA PATRIOT Act did not create
delayed notice search warrants. Delayed notice search warrants
have been used for decades prior to enactment of the USA
PATRIOT Act. In 1979, the U.S. Supreme Court expressly held in
Dalia v. United States that the Fourth Amendment does not
require law enforcement to give immediate notice of the
execution of a search warrant.\69\ The Department of Justice
states that three Federal courts of appeals had considered the
constitutionality of delayed-notice search warrants since 1979
and upheld their constitutionality.\70\
---------------------------------------------------------------------------
\69\ See Dalia v. United States, 441 U.S. 238 (1979); see also Katz
v. United States, 389 U.S. 347 (1967).
\70\ April 4, 2005 U.S. Department of Justice letter to Senator
Spector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th
Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990);
United States v. Simons, 206 F.3d 392 (4th Cir. 2000).
---------------------------------------------------------------------------
A delayed notice search warrant simply means that a court
has expressly authorized investigations to delay notifying a
suspect that a search warrant has been executed (i.e., a court-
ordered search has occurred). The search warrant is the same
regardless of when the suspect receives notice. Thus, before a
search warrant is issued, whether notice is delayed or not, a
Federal judge must find that there is probable cause to believe
the property to be searched or seized constitutes evidence of a
criminal offense.
Congress included section 213 in the USA PATRIOT Act to
create a uniform nationwide standard for the issuance of these
warrants. Under section 213 there are limited circumstances
when a court may delay notice. These circumstances are the same
predicate circumstances permitted in an application for
delaying notice in a search warrant for stored communications
under section 2705(a)(2) of title 18, which predated the USA
PATRIOT Act. For a court to permit a delay in the notice of a
search of a suspect's property, the investigator or prosecutor
must show that there is reasonable cause to believe that if the
suspect is notified at the same time as the search one of the
following situations may occur:
notification would endanger the life or
physical safety of an individual;
notification would cause flight from
prosecution;
notification would result in destruction of,
or tampering with, evidence;
notification would result in intimidation of
potential witnesses; or
notification would cause serious jeopardy to
an investigation or unduly delay a trial.
Section 213 permits delay limited only by a reasonableness
requirement. Members are concerned by this seemingly open-ended
term. This Amendment would permit delays for up to 180 days,
and would enable orders to be renewable in up to 90 day
increments.
Changes in Existing Law by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no changes
are proposed is shown in roman):
USA PATRIOT ACT
* * * * * * *
TITLE II--ENHANCED SURVEILLANCE PROCEDURES
* * * * * * *
[SEC. 224. SUNSET.
[(a) In General.--Except as provided in subsection (b), this
title and the amendments made by this title (other than
sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219,
221, and 222, and the amendments made by those sections) shall
cease to have effect on December 31, 2005.
[(b) Exception.--With respect to any particular foreign
intelligence investigation that began before the date on which
the provisions referred to in subsection (a) cease to have
effect, or with respect to any particular offense or potential
offense that began or occurred before the date on which such
provisions cease to have effect, such provisions shall continue
in effect.]
* * * * * * *
TITLE X--MISCELLANEOUS
SEC. 1001. REVIEW OF THE DEPARTMENT OF JUSTICE.
The Inspector General of the Department of Justice shall
designate one official who shall--
(1)(A) review information and receive complaints
alleging abuses of civil rights and civil liberties by
employees and officials of the Department of Justice,
and (B) review detentions of persons under section 3144
of title 18, United States Code, including their
length, conditions of access to counsel, frequency of
access to counsel, offense at issue, and frequency of
appearance before a grand jury;
* * * * * * *
----------
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
DESIGNATION OF JUDGES
Sec. 103. (a) * * *
* * * * * * *
(e)(1) Three judges designated under subsection (a) who
reside within 20 miles of the District of Columbia, or if all
of such judges are unavailable, other judges of the court
established under subsection (a) as may be designated by the
Presiding Judge of such court (who is designated by the Chief
Justice of the United States from among the judges of the
court), shall comprise a petition review panel which shall have
jurisdiction to review petitions filed pursuant to section
501(f)(1).
(2) Not later than 60 days after the date of the enactment of
the USA PATRIOT and Terrorism Prevention Reauthorization Act of
2005, the court established under subsection (a) shall develop
and issue procedures for the review of petitions filed pursuant
to section 501(f)(1) by the panel established under paragraph
(1). Such procedures shall provide that review of a petition
shall be conducted ex parte and in camera and shall also
provide for the designation of an Acting Presiding Judge.
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 105. (a) * * *
* * * * * * *
(c) An order approving an electronic surveillance under this
section shall--
(1) * * *
(2) direct--
(A) * * *
(B) that, upon the request of the applicant,
a specified communication or other common
carrier, landlord, custodian, or other
specified person, or in circumstances [where
the Court finds] where the Court finds, based
upon specific facts provided in the
application, that the actions of the target of
the application may have the effect of
thwarting the identification of a specified
person, such other persons, furnish the
applicant forthwith all information,
facilities, or technical assistance necessary
to accomplish the electronic surveillance in
such a manner as will protect its secrecy and
produce a minimum of interference with the
services that such carrier, landlord,
custodian, or other person is providing that
target of electronic surveillance;
(C) that such carrier, landlord, custodian,
or other person maintain under security
procedures approved by the Attorney General and
the Director of National Intelligence any
records concerning the surveillance or the aid
furnished that such person wishes to retain;
[and]
(D) that the applicant compensate, at the
prevailing rate, such carrier, landlord,
custodian, or other person for furnishing such
aid[.]; and
(E) that, in the case of electronic
surveillance directed at a facility or place
that is not known at the time the order is
issued, the applicant shall notify a judge
having jurisdiction under section 103 within 10
days after electronic surveillance begins to be
directed at a new facility or place, and such
notice shall contain a statement of the facts
and circumstances relied upon by the applicant
to justify the belief that the facility or
place at which the electronic surveillance is
or was directed is being used, or is about to
be used, by the target of electronic
surveillance.
* * * * * * *
(e)(1) An order issued under this section may approve an
electronic surveillance for the period necessary to achieve its
purpose, or for ninety days, whichever is less, except that (A)
an order under this section shall approve an electronic
surveillance targeted against a foreign power, as defined in
section 101(a), (1), (2), or (3), for the period specified in
the application or for one year, whichever is less, and (B) an
order under this Act for a surveillance targeted against an
agent of a foreign power[, as defined in section 101(b)(1)(A)]
who is not a United States person may be for the period
specified in the application or for 120 days, whichever is
less.
(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the same
manner as required for an original order, except that (A) an
extension of an order under this Act for a surveillance
targeted against a foreign power, a defined in section 101(a)
(5) or (6), or against a foreign power as defined in section
101(a)(4) that is not a United States person, may be for a
period not to exceed one year if the judge finds probable cause
to believe that no communication of any individual United
States person will be acquired during the period, and (B) an
extension of an order under this Act for a surveillance
targeted against an agent of a foreign power [as defined in
section 101(b)(1)(A)] who is not a United States person may be
for a period not to exceed 1 year.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 304. (a) * * *
* * * * * * *
(d)(1) An order issued under this section may approve a
physical search for the period necessary to achieve its
purpose, or for 90 days, whichever is less, except that (A) an
order under this section shall approve a physical search
targeted against a foreign power, as defined in paragraph (1),
(2), or (3) of section 101(a), for the period specified in the
application or for one year, whichever is less, and (B) an
order under this section for a physical search targeted against
an agent of a foreign power [as defined in section
101(b)(1)(A)] who is not a United States person may be for the
period specified in the application or for 120 days, whichever
is less.
(2) Extensions of an order issued under this title may be
granted on the same basis as the original order upon an
application for an extension and new findings made in the same
manner as required for the original order, except that an
extension of an order under this Act for a physical search
targeted against a foreign power, as defined in section 101(a)
(5) or (6), or against a foreign power, as defined in section
101(a)(4), that is not a United States person, or against an
agent of a foreign power [as defined in section 101(b)(1)(A)]
who is not a United States person, may be for a period not to
exceed one year if the judge finds probable cause to believe
that no property of any individual United States person will be
acquired during the period.
* * * * * * *
TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE AND
INTERNATIONAL TERRORISM INVESTIGATIONS
Sec. 402. (a) * * *
* * * * * * *
[(e) An] (e)(1) Except as provided in paragraph (2), an order
issued under this section shall authorize the installation and
use of a pen register or trap and trace device for a period not
to exceed 90 days. Extensions of such an order may be granted,
but only upon an application for an order under this section
and upon the judicial finding required by subsection (d). The
period of extension shall be for a period not to exceed 90
days.
(2) In the case of an application under subsection (c) where
the applicant has certified that the information likely to be
obtained is foreign intelligence information not concerning a
United States person, an order, or an extension of an order,
under this section may be for a period not to exceed one year.
* * * * * * *
TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
PURPOSES
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a) * * *
(b) Each application under this section--
(1) * * *
(2) shall specify that the records concerned are
sought for an authorized investigation conducted in
accordance with subsection (a)(2) [to obtain foreign
intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities.] and that the
information likely to be obtained from the tangible
things is reasonably expected to be (A) foreign
intelligence information not concerning a United States
person, or (B) relevant to an ongoing investigation to
protect against international terrorism or clandestine
intelligence activities.
[(c)(1) Upon an application made pursuant to this section,
the judge shall enter an ex parte order as requested, or as
modified, approving the release of records if the judge finds
that the application meets the requirements of this section.]
(c)(1) Upon an application made pursuant to this section, if
the judge finds that the application meets the requirements of
subsections (a) and (b), the judge shall enter an ex parte
order as requested, or as modified, approving the release of
records.
* * * * * * *
[(d) No person shall disclose to any other person (other than
those persons necessary to produce the tangible things under
this section) that the Federal Bureau of Investigation has
sought or obtained tangible things under this section.]
(d)(1) No person shall disclose to any person (other than a
qualified person) that the United States has sought or obtained
tangible things under this section.
(2) An order under this section shall notify the person to
whom the order is directed of the nondisclosure requirement
under paragraph (1).
(3) Any person to whom an order is directed under this
section who discloses that the United States has sought to
obtain tangible things under this section to a qualified person
with respect to the order shall inform such qualified person of
the nondisclosure requirement under paragraph (1) and that such
qualified person is also subject to such nondisclosure
requirement.
(4) A qualified person shall be subject to any nondisclosure
requirement applicable to a person to whom an order is directed
under this section in the same manner as such person.
(5) In this subsection, the term ``qualified person'' means--
(A) any person necessary to produce the tangible
things pursuant to an order under this section; or
(B) an attorney to obtain legal advice with respect
to an order under this section.
* * * * * * *
(f)(1) A person receiving an order to produce any tangible
thing under this section may challenge the legality of that
order by filing a petition in the panel established by section
103(e)(1). The Presiding Judge shall conduct an initial review
of the petition. If the Presiding Judge determines that the
petition is frivolous, the Presiding Judge shall immediately
deny the petition and promptly provide a written statement of
the reasons for the determination for the record. If the
Presiding Judge determines that the petition is not frivolous,
the Presiding Judge shall immediately assign the petition to
one of the judges serving on such panel. The assigned judge
shall promptly consider the petition in accordance with
procedures developed and issued pursuant to section 103(e)(2).
The judge considering the petition may modify or set aside the
order only if the judge finds that the order does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the order, the judge shall
immediately affirm the order and order the recipient to comply
therewith. A petition for review of a decision to affirm,
modify, or set aside an order by the United States or any
person receiving such order shall be to the court of review
established under section 103(b), which shall have jurisdiction
to consider such petitions. The court of review shall
immediately provide for the record a written statement of the
reasons for its decision and, on petition of the United States
or any person receiving such order for writ of certiorari, the
record shall be transmitted under seal to the Supreme Court,
which shall have jurisdiction to review such decision.
(2) Judicial proceedings under this subsection shall be
concluded as expeditiously as possible. The judge considering a
petition filed under this subsection shall provide for the
record a written statement of the reasons for the decision. The
record of proceedings, including petitions filed, orders
granted, and statements of reasons for decision, shall be
maintained under security measures established by the Chief
Justice of the United States in consultation with the Attorney
General and the Director of National Intelligence.
(3) All petitions under this subsection shall be filed under
seal, and the court, upon the government's request, shall
review any government submission, which may include classified
information, as well as the government's application and
related materials, ex parte and in camera.
[Effective December 31, 2015, section 3(b) of H.R. 3199 as reported by
the Committee on the Judiciary, provides that the Foreign Intelligence
Surveillance Act of 1978 is amended so that sections 501, 502, and
105(c)(2) read as they read on October 25, 2001.]
ISSUANCE OF AN ORDER
Sec. 105. (a) * * *
* * * * * * *
(c) An order approving an electronic surveillance under this
section shall--
(1) * * *
(2) direct--
(A) that the minimization procedures be
followed;
(B) that, upon the request of the applicant,
a specified communication or other common
carrier, landlord, custodian, or other
specified person furnish the applicant
forthwith all information, facilities, or
technical assistance necessary to accomplish
the electronic surveillance in such a manner as
will protect its secrecy and produce a minimum
of interference with the services that such
carrier, landlord, custodian, or other person
is providing that target of electronic
surveillance;
(C) that such carrier, landlord, custodian,
or other person maintain under security
procedures approved by the Attorney General and
the Director of National Intelligence any
records concerning the surveillance or the aid
furnished that such person wishes to retain;
and
(D) that the applicant compensate, at the
prevailing rate, such carrier, landlord,
custodian, or other person for furnishing such
aid.
* * * * * * *
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE
AND INTERNATIONAL TERRORISM INVESTIGATIONS.
(a)(1) The Director of the Federal Bureau of Investigation or
a designee of the Director (whose rank shall be no lower than
Assistant Special Agent in Charge) may make an application for
an order requiring the production of any tangible things
(including books, records, papers, documents, and other items)
for an investigation to protect against international terrorism
or clandestine intelligence activities, provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution.
(2) An investigation conducted under this section shall--
(A) be conducted under guidelines approved by the
Attorney General under Executive Order 12333 (or a
successor order); and
(B) not be conducted of a United States person solely
upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(b) Each application under this section--
(1) shall be made to--
(A) a judge of the court established by
section 103(a); or
(B) a United States Magistrate Judge under
chapter 43 of title 28, United States Code, who
is publicly designated by the Chief Justice of
the United States to have the power to hear
applications and grant orders for the
production of tangible things under this
section on behalf of a judge of that court; and
(2) shall specify that the records concerned are
sought for an authorized investigation conducted in
accordance with subsection (a)(2) to obtain foreign
intelligence information not concerning a United States
person or to protect against international terrorism or
clandestine intelligence activities.
(c)(1) Upon an application made pursuant to this section, the
judge shall enter an ex parte order as requested, or as
modified, approving the release of records if the judge finds
that the application meets the requirements of this section.
(2) An order under this subsection shall not disclose that it
is issued for purposes of an investigation described in
subsection (a).
(d) No person shall disclose to any other person (other than
those persons necessary to produce the tangible things under
this section) that the Federal Bureau of Investigation has
sought or obtained tangible things under this section.
(e) A person who, in good faith, produces tangible things
under an order pursuant to this section shall not be liable to
any other person for such production. Such production shall not
be deemed to constitute a waiver of any privilege in any other
proceeding or context.
SEC. 502. CONGRESSIONAL OVERSIGHT.
(a) On a semiannual basis, the Attorney General shall fully
inform the Permanent Select Committee on Intelligence of the
House of Representatives and the Select Committee on
Intelligence of the Senate concerning all requests for the
production of tangible things under section 402.
(b) On a semiannual basis, the Attorney General shall provide
to the Committees on the Judiciary of the House of
Representatives and the Senate a report setting forth with
respect to the preceding 6-month period--
(1) the total number of applications made for orders
approving requests for the production of tangible
things under section 402; and
(2) the total number of such orders either granted,
modified, or denied.
----------
Intelligence Reform and Terrorism Prevention Act of 2004
* * * * * * *
TITLE VI--TERRORISM PREVENTION
Subtitle A--Individual Terrorists as Agents of Foreign Powers
SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN
POWERS.
[(a) In General.--Section] Section 101(b)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is
amended by adding at the end the following new subparagraph:
``(C) engages in international terrorism or
activities in preparation therefore; or''.
[(b) Sunset.--The amendment made by subsection (a) shall be
subject to the sunset provision in section 224 of Public Law
107-56 (115 Stat. 295), including the exception provided in
subsection (b) of such section 224.]
* * * * * * *
Subtitle E--Criminal History Background Checks
* * * * * * *
SEC. 6603. ADDITIONS TO OFFENSE OF PROVIDING MATERIAL
SUPPORT TO TERRORISM.
(a) * * *
* * * * * * *
[(g) Sunset Provision.--
[(1) In general.--Except as provided in paragraph
(2), this section and the amendments made by this
section shall cease to be effective on December 31,
2006.
[(2) Exception.--This section and the amendments made
by this section shall continue in effect with respect
to any particular offense that--
[(A) is prohibited by this section or
amendments made by this section; and
[(B) began or occurred before December 31,
2006.]
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 981. Civil forfeiture
(a)(1) The following property is subject to forfeiture to the
United States:
(A) * * *
(B) Any property, real or personal, within the
jurisdiction of the United States, constituting,
derived from, or traceable to, any proceeds obtained
directly or indirectly from an offense against a
foreign nation, or any property used to facilitate such
an offense, if the offense--
(i) involves trafficking in nuclear, chemical,
biological, or radiological weapons technology or
material, or the manufacture, importation, sale, or
distribution of a controlled substance (as that term is
defined for purposes of the Controlled Substances Act),
or any other conduct described in section
1956(c)(7)(B);
* * * * * * *
CHAPTER 97--RAILROADS
* * * * * * *
Sec. 1993. Terrorist attacks and other acts of violence against mass
transportation systems
(a) General prohibitions.--Whoever willfully--
(1) * * *
* * * * * * *
(7) conveys or causes to be conveyed false
information, knowing the information to be false,
concerning an attempt or alleged attempt being made or
to be made, to do any act which would be a crime
prohibited by this subsection; [or]
(8) surveils, photographs, videotapes, diagrams, or
otherwise collects information with the intent to plan
or assist in planning any of the acts described in the
paragraphs (1) through (7); or
[(8)] (9) attempts, threatens, or conspires to do any
of the aforesaid acts,
* * * * * * *
CHAPTER 113B--TERRORISM
* * * * * * *
Sec. 2332b. Acts of terrorism transcending national boundaries
(a) * * *
* * * * * * *
(g) Definitions.--As used in this section--
(1) * * *
* * * * * * *
(5) the term ``Federal crime of terrorism'' means an
offense that--
(A) * * *
(B) is a violation of--
(i) section 32 (relating to
destruction of aircraft or aircraft
facilities), 37 (relating to violence
at international airports), 81
(relating to arson within special
maritime and territorial jurisdiction),
175 or 175b (relating to biological
weapons), 175c (relating to variola
virus), 229 (relating to chemical
weapons), subsection (a), (b), (c), or
(d) of section 351 (relating to
congressional, cabinet, and Supreme
Court assassination and kidnaping), 831
(relating to nuclear materials), 832
(relating to nuclear and weapons of
mass destruction threats), 832
(relating to participation in nuclear
and weapons of mass destruction threats
to the United States) 842(m) or (n)
(relating to plastic explosives),
844(f)(2) or (3) (relating to arson and
bombing of Government property risking
or causing death), 844(i) (relating to
arson and bombing of property used in
interstate commerce), 930(c) (relating
to killing or attempted killing during
an attack on a Federal facility with a
dangerous weapon), 956(a)(1) (relating
to conspiracy to murder, kidnap, or
maim persons abroad), 1030(a)(1)
(relating to protection of computers),
1030(a)(5)(A)(i) resulting in damage as
defined in 1030(a)(5)(B)(ii) through
(v) (relating to protection of
computers), 1114 (relating to killing
or attempted killing of officers and
employees of the United States), 1116
(relating to murder or manslaughter of
foreign officials, official guests, or
internationally protected persons),
1203 (relating to hostage taking), 1361
(relating to government property or
contracts), 1362 (relating to
destruction of communication lines,
stations, or systems), 1363 (relating
to injury to buildings or property
within special maritime and territorial
jurisdiction of the United States),
1366(a) (relating to destruction of an
energy facility), 1751(a), (b), (c), or
(d) (relating to Presidential and
Presidential staff assassination and
kidnaping), 1992 (relating to wrecking
trains), 1993 (relating to terrorist
attacks and other acts of violence
against mass transportation systems),
2155 (relating to destruction of
national defense materials, premises,
or utilities), 2156 (relating to
national defense material, premises, or
utilities), 2280 (relating to violence
against maritime navigation), 2281
(relating to violence against maritime
fixed platforms), 2332 (relating to
certain homicides and other violence
against United States nationals
occurring outside of the United
States), 2332a (relating to use of
weapons of mass destruction), 2332b
(relating to acts of terrorism
transcending national boundaries),
2332f (relating to bombing of public
places and facilities), 2332g (relating
to missile systems designed to destroy
aircraft), 2332h (relating to
radiological dispersal devices), 2339
(relating to harboring terrorists),
2339A (relating to providing material
support to terrorists), 2339B (relating
to providing material support to
terrorist organizations), 2339C
(relating to financing of terrorism,
2339D (relating to military-type
training from a foreign terrorist
organization), or 2340A (relating to
torture) of this title;
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General, Associate
Attorney General, or any Assistant Attorney General, any acting
Assistant Attorney General, or any Deputy Assistant Attorney
General or acting Deputy Assistant Attorney General in the
Criminal Division specially designated by the Attorney General,
may authorize an application to a Federal judge of competent
jurisdiction for, and such judge may grant in conformity with
section 2518 of this chapter an order authorizing or approving
the interception of wire or oral communications by the Federal
Bureau of Investigation, or a Federal agency having
responsibility for the investigation of the offense as to which
the application is made, when such interception may provide or
has provided evidence of--
(a) * * *
* * * * * * *
(c) any offense which is punishable under the
following sections of this title: section 37 (relating
to violence at international airports), section 175b
(relating to biological agents or toxins) section 201
(bribery of public officials and witnesses), section
215 (relating to bribery of bank officials), section
224 (bribery in sporting contests), subsection (d),
(e), (f), (g), (h), or (i) of section 844 (unlawful use
of explosives), section 1032 (relating to concealment
of assets), section 1084 (transmission of wagering
information), section 751 (relating to escape), section
832 (relating to nuclear and weapons of mass
destruction threats), section 842 (relating to
explosive materials), section 930 (relating to
possession of weapons in Federal facilities), section
1014 (relating to loans and credit applications
generally; renewals and discounts), section 1114
(relating to officers and employees of the United
States), section 1116 (relating to protection of
foreign officials), sections 1361-1363 (relating to
damage to government buildings and communications),
section 1366 (relating to destruction of an energy
facility), sections 1503, 1512, and 1513 (influencing
or injuring an officer, juror, or witness generally),
section 1510 (obstruction of criminal investigations),
section 1511 (obstruction of State or local law
enforcement), section 1591 (sex trafficking of children
by force, fraud, or coercion), section 1751
(Presidential and Presidential staff assassination,
kidnapping, and assault), section 1951 (interference
with commerce by threats or violence), section 1952
(interstate and foreign travel or transportation in aid
of racketeering enterprises), section 1958 (relating to
use of interstate commerce facilities in the commission
of murder for hire), section 1959 (relating to violent
crimes in aid of racketeering activity), section 1954
(offer, acceptance, or solicitation to influence
operations of employee benefit plan), section 1955
(prohibition of business enterprises of gambling),
section 1956 (laundering of monetary instruments),
section 1957 (relating to engaging in monetary
transactions in property derived from specified
unlawful activity), section 659 (theft from interstate
shipment), section 664 (embezzlement from pension and
welfare funds), section 1343 (fraud by wire, radio, or
television), section 1344 (relating to bank fraud),
section 1993 (relating to terrorist attacks against
mass transportation), sections 2155 and 2156 (relating
to national-defense utilities), sections 2280 and 2281
(relating to violence against maritime navigation),
sections 2251 and 2252 (sexual exploitation of
children), section 2251A (selling or buying of
children), section 2252A (relating to material
constituting or containing child pornography), section
1466A (relating to child obscenity), section 2260
(production of sexually explicit depictions of a minor
for importation into the United States), sections 2421,
2422, 2423, and 2425 (relating to transportation for
illegal sexual activity and related crimes),sections
2312, 2313, 2314, and 2315 (interstate transportation
of stolen property), section 2321 (relating to
trafficking in certain motor vehicles or motor vehicle
parts), section 2340A (relating to torture), section
1203 (relating to hostage taking), section 1029
(relating to fraud and related activity in connection
with access devices), section 3146 (relating to penalty
for failure to appear), section 3521(b)(3) (relating to
witness relocation and assistance), section 32
(relating to destruction of aircraft or aircraft
facilities), section 38 (relating to aircraft parts
fraud), section 1963 (violations with respect to
racketeer influenced and corrupt organizations),
section 115 (relating to threatening or retaliating
against a Federal official), section 1341 (relating to
mail fraud), a felony violation of section 1030
(relating to computer fraud and abuse), section 351
(violations with respect to congressional, Cabinet, or
Supreme Court assassinations, kidnapping, and assault),
section 831 (relating to prohibited transactions
involving nuclear materials), section 33 (relating to
destruction of motor vehicles or motor vehicle
facilities), section 175 (relating to biological
weapons), section 175c (relating to variola virus),
section 1992 (relating to wrecking trains), a felony
violation of section 1028 (relating to production of
false identification documentation), section 1425
(relating to the procurement of citizenship or
nationalization unlawfully), section 1426 (relating to
the reproduction of naturalization or citizenship
papers), section 1427 (relating to the sale of
naturalization or citizenship papers), section 1541
(relating to passport issuance without authority),
section 1542 (relating to false statements in passport
applications), section 1543 (relating to forgery or
false use of passports), section 1544 (relating to
misuse of passports), or section 1546 (relating to
fraud and misuse of visas, permits, and other
documents);
* * * * * * *
(p) a felony violation of section 1028 (relating to
production of false identification documents), section
1542 (relating to false statements in passport
applications), section 1546 (relating to fraud and
misuse of visas, permits, and other documents, section
1028A (relating to aggravated identity theft)) of this
title or a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (relating to the
smuggling of aliens); or
(q) any criminal violation of section 229 (relating
to chemical weapons); or sections 2332, 2332a, 2332b,
2332d, 2332f, 2332g, 2332h 2339, 2339A, 2339B, or 2339C
2339D of this title (relating to terrorism); or
* * * * * * *
Sec. 2517. Authorization for disclosure and use of intercepted wire,
oral, or electronic communications
(1) * * *
* * * * * * *
(6) Any investigative or law enforcement officer, or attorney
for the Government, who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence derived
therefrom, may disclose such contents to any other Federal law
enforcement, intelligence, protective, immigration, national
defense, or national security official to the extent that such
contents include foreign intelligence or counterintelligence
(as defined in section 3 of the National Security Act of 1947
(50 U.S.C. 401a)), or foreign intelligence information (as
defined in subsection (19) of section 2510 of this title), to
assist the official who is to receive that information in the
performance of his official duties. Any Federal official who
receives information pursuant to this provision may use that
information only as necessary in the conduct of that person's
official duties subject to any limitations on the unauthorized
disclosure of such information. Within a reasonable time after
a disclosure of the contents of a communication under this
subsection, an attorney for the Government shall file, under
seal, a notice with a judge whose order authorized or approved
the interception of that communication, stating the fact that
such contents were disclosed and the departments, agencies, or
entities to which the disclosure was made.
* * * * * * *
CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND
TRANSACTIONAL RECORDS ACCESS
* * * * * * *
Sec. 2702. Voluntary disclosure of customer communications or records
(a) * * *
* * * * * * *
(d) Report.--On an annual basis, the Attorney General shall
submit to the Committees on the Judiciary of the House and the
Senate a report containing--
(1) the number of accounts from which the Department
of Justice has received voluntary disclosures under
subsection (b)(8); and
(2) a summary of the basis for disclosure in those
instances where--
(A) voluntary disclosure under subsection
(b)(8) was made to the Department of Justice;
and
(B) the investigation pertaining to those
disclosures was closed without the filing of
criminal charges.
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 205--SEARCHES AND SEIZURES
* * * * * * *
Sec. 3103a. Additional grounds for issuing warrant
(a) * * *
(b) Delay.--With respect to the issuance of any warrant or
court order under this section, or any other rule of law, to
search for and seize any property or material that constitutes
evidence of a criminal offense in violation of the laws of the
United States, any notice required, or that may be required, to
be given may be delayed if--
(1) * * *
* * * * * * *
(3) the warrant provides for the giving of such
notice within a reasonable period [of its] , which
shall not be more than 180 days, after its execution,
which period may thereafter be extended for additional
periods of not more than 90 days each by the court for
good cause shown.
* * * * * * *
Markup Transcript
BUSINESS MEETING
JULY 13, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present, and without objection, the Chair is
authorized to declare recesses of the Committee during
consideration of noticed bills. Hearing none, so ordered.
Pursuant to notice, I now call----
Mr. Watt. Mr. Chairman, we are having trouble hearing you.
Chairman Sensenbrenner. Excuse me. Pursuant to notice, I
now call up the bill H.R. 3199, the ``USA PATRIOT and Terrorism
Prevention Reauthorization Act of 2005,'' for purposes of
markup and move its favorable recommendation to the House.
Without objection, the bill will be considered as read and open
for amendment at any point. Hearing no objection, so ordered.
[The bill, H.R. 3199, follows:]
Chairman Sensenbrenner. The Chair now recognizes himself
for 5 minutes to explain the bill.
Today we are marking up H.R. 3199, the ``USA PATRIOT and
Terrorism Prevention Reauthorization Act of 2005,'' in the wake
of deadly and tragic terrorist attacks. Last week, innocent
people in London were murdered in a series of coordinated
attacks executed with ruthless precision. And last year, Spain
was victimized by similar acts of terrorism directed at mass
transit. We pray for the innocent victims and their families of
these recent attacks and stand firmly with them in their time
of grief.
Though the terrorists' goal is to shake the foundation of
our democracies, these heinous acts have only strengthened our
resolve to defeat them. I believe that both Congress and the
Bush administration deserve credit for reacting quickly to take
the terrorist threat head on by providing the hard-working men
and women of law enforcement, the intelligence community, and
our armed services with the tool they need to prevent another
attack here at home. The PATRIOT Act was one important
initiative.
While many, including myself, continue to be wary of the
Government having any more authority than absolutely necessary,
we must view attacks as an important reminder that the specter
of terrorism remains a clear and present danger to free nations
around the world, and that we are still very much at war
against an enemy that will do anything in its power to kill
innocent citizens.
I strongly believe that we must not take any steps that
might compromise the ability of law enforcement to thwart
future acts of terrorism. Accordingly, the legislation that I
have introduced and we consider here today will permanently
extend the important antiterrorism tools contained in the
PATRIOT Act.
This bill is based upon 4 years of extensive oversight
consisting of hearing testimony, Inspector General reports,
briefings, and oversight letter. The materials on the left side
of the clerk's table over there show the Committee's efforts to
engage in aggressive oversight. Since April of this year alone,
the Committee has heard testimony from 35 witnesses during 11
hearings on the PATRIOT Act. That testimony and oversight has
demonstrated that the PATRIOT Act has been an effective tool
against terrorists as well as criminals intent on harming
innocent people and, therefore, deserves to be extended
permanently, subject to several modifications contained in the
bill.
While there should continue to be a healthy public debate
on how best to ensure the safety of our citizens, the security
of the American people should not be subject to arbitrary
expiration dates and should not provide an excuse for divisive
partisan debates or political fundraising. To address concerns
that judicial--judicial oversight is necessary when criminal
wiretap information was shared with the intelligence community,
the bill would amend current law to require that an officer or
attorney who makes a disclosure under this subsection within a
reasonable time after that disclosure notify the court that
issued the wiretap order that such information was shared.
Based upon concerns expressed by the Commission on Weapons
of Mass Destruction, the bill extends the duration of the
Foreign Intelligence Surveillance Act order for non-United
States persons. DOJ estimates that the enactment of Section 207
has saved nearly 60,000 attorney hours or 30 lawyers a year's
worth of work.
Finally, this bill addresses Section 215, which has been
inaccurately characterized by many and, as a result, has
unnecessarily caused much public consternation. While I
recognize the good intentions of those voting to limit the
authority of Section 215, I am concerned that limitations only
make Americans more vulnerable to terrorism.
This bill amends Section 215 of the PATRIOT Act to clarify
that the information likely to be obtained is reasonably
expected to be foreign intelligence information not concerning
a U.S. person or information relevant to an ongoing
investigation to protect against international terrorism or
clandestine intelligence activities.
The legislation would also clarify that a FISA 215 order
may be challenged and that a recipient of a 215 order may
consult with the lawyer and the appropriate people necessary to
respond to the order.
Finally, the bill expressly clarifies that an order will
only be issued if the judge finds that the requirements have
been met and sets up a judicial review process that authorizes
the judge to set aside or affirm a 215 order has been changed.
As Chairman of this Committee, I have made every effort to
strike an appropriate balance between liberty and security.
This bill reflects this balance and is the product of
comprehensive and bipartisan legislative consideration. I urge
that the bill be approved, and I recognize the gentleman from
Michigan, Mr. Conyers, for an opening statement.
Mr. Conyers. Thank you, Mr. Chairman, and I'm happy to see
my colleagues back after the strenuous All Star Game in Detroit
yesterday evening, which required me to get up a 4 o'clock. But
might I ask unanimous consent for the gentlelady from Texas,
Ms. Jackson Lee, to speak for 1 minute out of order because she
is going to be leaving to return there for some very important
activity that's going on.
Chairman Sensenbrenner. Without objection.
Mr. Conyers. I thank you.
Ms. Jackson Lee. This is a very important day. I thank you
very much, Mr. Conyers and Mr. Chairman. Because of my 10-year
membership on the Space and Aeronautics Subcommittee of the
Science Committee, I will be attending the restoration of human
Space Shuttle flight in Florida today and will be in and out
and not at my desk. I recognize that our Nation is looking at a
very important step, and today, of course, that step is looking
at the reauthorization of the PATRIOT Act.
I look forward to the debate in the days to come, and I
remind my colleagues that I know that this is a Nation of laws,
but it is also a Nation of liberty, and the PATRIOT Act must
reflect that liberty.
I thank my colleagues, and I ask unanimous consent that any
additional statement may be put into the record for this
Committee.
I yield back.
[The prepared statement of Ms. Jackson Lee follows:]
Chairman Sensenbrenner. Without objection, and the Chair
will reset the clock for the gentleman from Michigan, who is
recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
Members of the Committee, we begin the important
reauthorization of the PATRIOT Act, but I don't think this
discussion can proceed correctly unless we acknowledge that the
PATRIOT Act that the Committee passed 36-0 was suspended and
pulled out of the Rules Committee and replaced with a bill that
no one on the Committee that I know of had seen before it came
from the Rules Committee. So we're working under an extremely
serious abuse of process on a measure of this magnitude.
Nevertheless, my comments divide into three categories:
first of all, there's the 16 sunset provisions which we are
called to re-examine; the second are problems with the PATRIOT
Act that were not the object of sunset provisions, some of
which we were afforded hearings, at least one, maybe two, to
deal with these problems with the PATRIOT Act; and the third
category that I would bring to your attention, my colleagues,
is the abuses of process that are not within the PATRIOT Act
but could easily be confused for being part of the PATRIOT Act,
some because of the secrecy of the way some of these things are
handled by the administration, the Department of Justice, the
FBI. Sometimes you can't tell whether it's PATRIOT Act or not.
So let me just point out a couple of the problems in the
sunsetting provisions. Section 206 and 215 leap out at us as we
review this matter. The roving wiretaps, Section 206, which
allows surveillance orders which specify neither person nor
place to be surveilled. It's a roving wiretap, a John Doe
roving wiretap, and we essentially do not address this measure
to my satisfaction.
The second matter is the Section 215 that allows the FBI to
get an order, a secret order, for anything from anyone whenever
they ask a secret court. The bill has a convoluted proposal
that falls far short of satisfactory protecting the civil
liberties of our citizenry.
Now, within the PATRIOT Act itself, I bring your attention
to the material support statute which makes criminals out of
people who give money to charities or volunteer their services
with no intention to ever help terrorists, and if it turns out
that there is a mistake made, this helps them get prosecuted. I
object to this.
Section 213, the infamous sneak-and-peek provision, which
gives unprecedented authority to the Federal Bureau of
Investigation to go into a citizen's home or business without
telling him or her for indefinite periods of time. The bill
does not satisfactorily address this matter.
And then there is the national security letters, which have
no judicial review, compel people to turn over sensitive
records, and gags them from even discussing their situation
with a lawyer.
We also have the problem of administrative subpoenas.
Administrative subpoenas circuit--get around the regular
process of subpoenas in which a court reviews them, and they're
issued by the Department of Justice. And so I think this is a
very big problem.
May I point out in closing that the----
Chairman Sensenbrenner. The gentleman's time has expired
and without objection is recognized for an additional minute.
Mr. Conyers. I thank the Chair.
There are some non-PATRIOT Act abuses that are still--that
should be the subject of our concerns, and one is the abuse and
torture of detainees at at least three places in the Western
hemisphere, and other places, actually, of violence, abuse,
harassment, which violates the Geneva Convention and the
Convention Against Torture.
Then we have the abuse of the immigration system to deny
due process rights and indefinitely detain people within the
borders; the use of racial profiling, which has rounded up
thousands of Middle Eastern and Muslim men with no known effect
of preventing terrorism; weeks, months later, they are
released. They're frequently held incommunicado from their
family or counsel. And, finally, the abuse of the material
witness statute to detain those who the Department may not
having anything else to hold them on, and so they hold them as
a material witness.
All of these are issues I hope we will be able to consider
in the course of this markup, and I thank the Chair for the
additional time.
Chairman Sensenbrenner. The time of the gentleman has once
again expired. Without objection, all members may insert
opening statements in the record at this point.
Are there amendments?
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, for
what purpose do you seek recognition?
Mr. Scott. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, recently I wrote a letter complaining about
having a full Committee markup without a hearing on the bill or
a Subcommittee mark. As the gentleman from Michigan has pointed
out, the last time we considered the PATRIOT Act, we considered
a bill, did hard work, but after all the hard work had been
done, they switched versions and we considered on the floor
something other than what we had considered.
Here we had extensive hearings in general, but none on the
bill itself. There's been no opportunity for the public to have
input on the bill or to prepare amendments to the bill as
introduced.
Now, it was my understanding from the Chairman of the
Subcommittee that we would have hearings on the bill, and we
wrote a letter--I haven't received a response. Perhaps if I
yield to the gentleman from North Carolina, he could explain
what his understanding was about a hearing on the bill after it
had been introduced. Wasn't it our understanding that there
would be a hearing? I yield.
Mr. Coble. If the gentleman would yield, this is a case of
first impression because the distinguished gentleman from
Virginia and I have gotten along very harmoniously and will
continue to do so. But, Mr. Scott, I don't recall that. I don't
recall that I indicated any subsequent hearing on this bill.
You will recall, Mr. Scott and colleagues, that our
Subcommittee hosted nine hearings on this matter. The full
Committee, as best I recall, Mr. Chairman, hosted two or three,
I think three, giving a total of 12 hearings. And, Mr. Scott,
if that was your impression, I think you misunderstood me
because I don't recall having said that.
Mr. Scott. Well, apparently I did--reclaiming my time,
apparently I did misunderstand because it was my understanding
that we would, after all those hearings, have a hearing on the
bill. Obviously that's not the case, and, Mr. Chairman, I just
want to register my complaint that we are not having a hearing
or a Subcommittee mark on a bill that is extremely complex and
I think could benefit from a hearing on the bill so that the
public could have input and a Subcommittee mark so that many of
the more controversial areas could be identified. But obviously
that's not going to be the case, and we'll do the best we can
under this procedure.
Mr. Nadler. Mr. Chairman?
Mr. Scott. I yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you.
Mr. Chairman, I would like to associate--begin by
associating myself with the remarks of the gentleman from
Virginia, and I believe I joined in sending that letter. But I
want to go a little further or a little differently.
It's not just that we haven't had a hearing on the bill. We
had extensive hearings, and I want to commend the Chairman and
the Committee for holding extensive hearings on the general
subject matter. But the Chairman's mark, that is to say, the
bill that we have before us that we're going to be dealing
with, was only made available to anyone, I think, late Friday.
And as I said 4 years ago--and the Chairman and I engaged in a
colloquy on the floor 4 years ago on this subject--this is the
kind of bill of a complex nature and a sensitive and delicate
nature where we are balancing a very, very legitimate and
pressing and compelling need for promoting the security of the
people of this Nation with equally compelling need for
preserving the liberties of the people of this Nation. And we
have to do a bill that does both and balances it to the best of
our ability.
And when the bill came out 4 years ago, this bill was only
in print, as I recall, Wednesday at 10 o'clock, and we started
debating at 11 o'clock and voted at 1 o'clock. And I said at
that time that this is the kind of bill that, because of the
sensitive balancing nature, should be available to the public.
We should send it out to the law schools, to the Civil
Liberties Union, to the American Conservative Union, to other
people, get their comments on the text, get their suggested
amendments, not just those that our staff dreams up in 2 days,
but get--vet this in public, vet this through the various
experts around the country, and then go into a markup.
We were told 4 years ago we didn't have time, that if we
waited a week, there would be blood on our hands. The Chairman
on the floor said it was true that we were doing this in great
haste, but the ideas in this bill have been around a long time.
I said on the floor, yeah, the ideas have been around a long
time, good ideas, bad ideas, mediocre ideas, and which ideas
have gotten into the bill and to what extent wasn't clear since
we haven't had a chance to read it.
Now, there is no commensurate rush. This bill is not
expiring tomorrow. Nothing expires until the end of the year.
So I would--I had suggested, and I still believe that since
nobody saw this mark, this bill until Friday night, we should
take a week or two--a week and mark up the bill a week later so
that people in the country at large--the Civil Liberties Union,
the Conservative Union, the various libertarian groups, the law
schools, everybody has a chance to look at this text, look at
proposed amendments. There's no reason why we shouldn't make
proposed amendments from both sides of the aisle available, and
get people's comments. Why should we legislate in a vacuum as
if all wisdom resides in this room?
Now, I will concede a considerable amount of wisdom does
reside in this room on both sides of the aisle, but not always,
though. So I would--it may be a little late at this point, but
I would hope that we wouldn't finish work on this this week. We
really should put it off for at least a week because we should
give the country a chance to express itself--not the entire
country but interested parties, law school professors, as I
have said before, people, law enforcement people, civil
liberties people, an opportunity to look at this bill, not just
at the concept, not just at the existing law, but at the bill,
and at the suggested amendments and express themselves. We
might get some better ideas, and maybe that would reduce the
number of amendments that we feel compelled to offer. Maybe it
would increase it. Who knows? But we might legislate in a more
informed manner.
And since this bill does not expire until the end of the
year, there's not a rush. There is plenty of business on the
floor to keep the floor busy. And, in fact, because of the--I
will say, the efficient manner in which the leadership of this
House has conducted business this year, we're way ahead of the
Senate. We're going to have to wait for them anyway. We've done
all the appropriations bills. They've done one or two of them.
So we've got plenty of time. I don't understand the nature of
the rush here and why we can't simply consider this a week
before we--before we're asked to vote on these amendments and
give people outside this Committee room the chance to comment
and maybe to give us a little more wisdom.
I thank the Chairman and I yield back.
Chairman Sensenbrenner. The time of the gentleman has
expired.
Are there amendments? The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, I have two amendments.
Chairman Sensenbrenner. Will the gentleman from California
please inform the clerk which amendment he wishes to offer?
Mr. Lungren. It's the longer of the two.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Amendment to H.R. 3199, offered by Mr. Lungren
of California. At the appropriate place insert the following:
SEC----. Report. Section 2702 of title 18, United States Code,
as amended by section 212 of the US PATRIOT Act, is amended by
inserting at the end of the following: (d) Report.--On an
annual basis, the Attorney General shall submit to the
Committees on the Judiciary of the House and the Senate a
report containing--(1) the number of accounts from which the
Department of Justice has received voluntary disclosures under
subsection (b)(8) of this section; and (2) a summary of the
basis for disclosure in those instances where--(A) voluntary
disclosure under subsection (b)(8) of this section were made to
the Department of Justice; and (B) the investigation pertaining
to those disclosures was closed without the following of
criminal charges.
[The amendment of Mr. Lungren follows:]
Chairman Sensenbrenner. The gentleman from California is
recognized for 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Chairman, this deals with Section 212 of the PATRIOT
Act. That is the section which permits the disclosure of the
content of a communication while in electronic storage to
Government entities by a service provider. Specifically, the
provider is allowed to divulge the contents of a communication
where the provider reasonably believes that an emergency
involving immediate danger of death or serious physical injury
to any person requires the disclosure of the information
without delay.
Under such exceptional life-threatening circumstances,
permitting the disclosure of such information to law
enforcement is certainly understandable. I think our hearings
showed that. However, at the same time, since it also does
involve the contents of a communication by a third party, I
felt that some accountability is necessary to ensure that this
authority is not being abused.
My amendment provides that the Attorney General shall on an
annual basis submit to this Committee and our counterpart in
the other body a report which must reveal the number of
accounts from which the Department receives disclosures of
information under Section 212. My amendment would also
specifically require the Department to provide a summary of the
basis for disclosure in those cases where the investigation was
closed without the filing of criminal charges. This information
I believe should be highly beneficial to the Committee,
fulfilling our oversight responsibility in the future, and I
ask for your support.
I believe, Mr. Chairman, this is the best way for us to
have a ready manner of looking at this particular section. In
the hearings that we had, I found no basis for claiming that
there has been abuse of this section. I don't believe on its
face it is an abusive section. But I do believe that it could
be subject to abuse in the future and, therefore, this allows
us as Members of Congress to have an ability to track this on a
regular basis.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Lungren. I yield back the balance of my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman----
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I support the gentleman's amendment, and I
would just ask some questions.
I did not hear the gentleman refer to any other language
other than just simply increased reporting to Congress. Is that
accurate?
Mr. Lungren. Yes. It requires--it requires a report. No
such report is required at the present time for this specific
section.
Mr. Delahunt. Can the gentleman inform me whether it
provides notice to persons whose communications have been
disclosed?
Mr. Lungren. It does not provide notice. I considered that.
I considered going to a court. I also considered giving notice.
But because of the possibility of a continuing ongoing
investigation, I thought this was the best way for us to enter
into it. We're the other party that looks at it that would
hopefully have regular oversight of the Justice Department in
this regard.
Mr. Delahunt. Does it provide in any way, shape, or form
for after-the-fact review by a court?
Mr. Lungren. No, it does not. I considered that. I thought
upon consideration this made more sense.
Mr. Delahunt. I would hope that the gentleman would
consider a conversation with myself and other members who
support this amendment but feel that there should be additional
provisions within this--within this particular amendment that
would consider those particular aspects.
Mr. Lungren. I will consider that, yes, sir.
Chairman Sensenbrenner. Does the gentleman yield back?
The question is on agreeing to the amendment offered by the
gentleman from California, Mr. Lungren. Those in favor will say
aye? Opposed, no?
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments? The gentleman from New York,
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I call up amendment--
Nadler amendment 001.XML.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler.
Section A. Strike section (b) of section 8 and insert the
following----
Mr. Nadler. I think you have the wrong amendment--oh, no,
I'm sorry. You're right.
Chairman Sensenbrenner. The clerk will continue to report.
The Clerk. (b) Applications for orders. Subsection (b) of
section 501 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1861) is amended--(1) in paragraph (1), by
striking ``and'' at the end; (2) in paragraph (2), by striking
the period at the end and inserting ``; and''; and (3) by
adding at the end the following----
Mr. Chabot. Mr. Chairman, I'd ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection. The gentleman--
without objection, so ordered.
[The amendment of Mr. Nadler follows:]
Chairman Sensenbrenner. The gentleman from New York is
recognized for 5 minutes.
Mr. Nadler. Thank you. Mr. Chairman, this amendment amends
Section 215 in three ways: Section 215 authorizes the FBI to
get a secret order for any document or anything, as long as the
FBI says it is relevant to a terrorist investigation. The FBI
would go to a--would obtain an order from a secret FISA court
to obtain a broad array of highly personal records, such as
those held by hotels, libraries, doctors, and schools, or any
other, quote, tangible things. They can do this without
probable cause in domestic intelligence investigations to
protect against terrorism or spying.
Under Section 215, this power can be used against literally
anyone, even if the person is not suspected of any wrongdoing
and is completely unconnected to terrorism, espionage, or other
criminal activity. Section 215 in effect allows the FBI to
conduct fishing expeditions against any American citizen
innocent of anything.
This amendment would amend Section 215 in three ways: It
would restore a standard of individualized suspicion, saying
that you could get an order if you have--if you can show
specific and articulable facts leading you to believe that this
person is an agent of a foreign power or a terrorist.
Second, it allows the recipient of a Section 215 order to
challenge the order in court. This is a common-sense protection
that is sorely lacking in the current law.
Now, the recipient, not the target--this isn't good enough,
but we can't do the target. Remember, the recipient could be
the Internet service provider or the library. And the Internet
service provider may be perfectly happy to provide the records
of some subscriber. But at least this gives them the ability to
go to court when they get the order if they think it proper. It
doesn't give the target of the order the ability to go to
court. He doesn't know about it. But the recipient, if they
wish, can challenge it in court.
And, thirdly, it gives the recipient the ability to
petition the court to set aside the non-disclosure requirement.
Remember, you're not allowed to disclose that you got this
order. And this would enable the recipient not only to petition
the court to oppose the order, but to petition the court, if it
granted the order, to set aside the non-disclosure requirements
if it is--unless it is shown that some adverse result will come
from disclosure. In other words, they could go to court and say
let us tell the target or the public that you gave us this
order and that we complied with it afterwards, unless someone
can--unless the FBI can make a showing that disclosure of this
would have some adverse effect.
The Chairman's bill does allow for a limited version of
judicial review of Section 215, but that review is very narrow.
It would require the recipient to file the claim for review in
a specialized court which would only meet in Washington. If you
were residing or your place of business was anywhere in the
country other than Washington, this would be highly
disadvantageous and maybe impossible, depending upon the
expense. This amendment would say you could go to court and
petition the court in any Federal--not just in Washington, D.C.
I think that allowing a standard of individualized
suspicion that you say you can only get this information if you
say--if you can show to the court specific and articulable
facts why you believe that this fellow is a terrorist or an
agent of a foreign power, allowing the recipient to challenge
the order in court and allowing the recipient to ask the court
in its discretion to waive the non-disclosure requirement
afterward are reasonable amendments which balance the liberty
interests that we all have with the security interests that we
all have, too.
I urge the adoption of the amendment and I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I rise in opposition to the
amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Lungren. Mr. Chairman, when you look at this amendment,
it is obvious that the standard proposed here is much more
rigorous than the relevance standard under which Federal grand
juries and ordinary criminal investigations can subpoena the
same records. This particular amendment would prevent the FISA
court from issuing an order under Section 215 unless the
Government provides specific and articulable facts giving
reasons to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power.
As I say, this is a higher standard. The standard would, in
my judgment, hinder the Government from using a Section 215
order to develop evidence at the early stages of an
investigation when such an order is most useful.
Consider an example where investigators are tracking down a
known al Qaeda operative who's having dinner with three people
who split the check four ways and each uses a credit card.
While law enforcement could demonstrate that this information
is relevant to an ongoing investigation, they would not be able
to demonstrate sufficient and articulable facts that those
individuals are agents of a foreign power.
One of the things that we have tried to understand here is
that this is in the area of attempting to deal with activities
before they expand into what would be known as a criminal act.
This is in the nature of trying to stop terrorists before they
act, not in the nature of a regular criminal investigation
which oftentimes is begun when you start to examine the crime
scene, develop the forensic evidence, and then try and prove
your case. This is a far different situation, and it strikes, I
believe, precisely at when a 215 order is most useful. Raising
this standard above relevance and requiring specific and
articulable facts giving reason to believe that the person to
whom the records pertain is a foreign power or an agent of a
foreign power would significantly, therefore, reduce the
utility of Section 215.
Also, with the--I guess it's the--it's either in the middle
of the gentleman's amendment or towards the end, where he talks
about allowing this to be challenged in either a U.S. district
court or in the FISA court, Section 215 orders are issued by
the FISA court, and any motion to set aside or amend the order
I would argue should be directed to the issuing court. It is
the FISA court that is better equipped than district courts to
handle sensitive classified information at issue in terrorism
cases.
So let us remember why we have this section. This section
is specifically to deal with the new reality that we have
facing us, and that is terrorism, with respect to transnational
organizations as well as a lone wolf, but primarily
transnational organizations. And that's why we need the section
as it is. I understand the gentleman's desire to try and raise
this standard to specific and articulable facts, giving reason,
as the words he has. But I believe this much more rigorous
standard beyond the relevance standard would be destructive to
the purposes of Section 215.
Mr. Berman. Would the gentleman yield?
Mr. Lungren. I'd be happy to yield.
Mr. Berman. I thank the gentleman for yielding. Is the
gentleman's objection to the first part of the amendment an
objection to the requirement of specific and articulable facts
or that it is limited to a suspect--a suspected agent of a
foreign power, a suspected terrorist?
Mr. Lungren. I would suggest that it's in both--both
sections. You know, I think you need the relevance standard.
There was an argument about whether or not there should be a
relevance standard. I don't think there's any doubt there ought
to be a relevance standard. It is in this bill as an
articulated standard. One of the questions we had at the
hearings at the very beginning was shouldn't there be some
relevance requirement. The response we heard from the Justice
Department was that's the practice, that's what we require,
that's what the courts require.
So what the Chairman of the Committee has done is put that
relevance standard in here.
Mr. Berman. I appreciate----
Mr. Lungren. I believe that's sufficient.
Mr. Berman. I appreciate that, but let me just--I mean, the
gentleman cited a hypothetical, which I have some sympathy for.
I mean, you do want--to the extent you're using these, they're
to go early and gather information.
Mr. Lungren. Yes.
Mr. Berman. But you talked about people who had
associated----
Mr. Lungren. Right.
Mr. Berman.--with someone who was suspected of being an
agent of a foreign power.
Mr. Lungren. Right.
Mr. Berman. I'm just wondering if--is there something a
little--something that is more--more specific than just a
simple relevance standard but is not so inflexible to keep you
from, for instance, subpoenaing--getting--searching and getting
a hold of the records, whatever they are, of Mohammed Atta's
roommate----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Berman. I'd ask unanimous consent for one additional
minute.
Chairman Sensenbrenner. Without objection.
Mr. Berman. I just throw out the possibility that there's
something between what you think is appropriate, the relevance
standard, based on the hypothetical you cited, and a number of
other hypotheticals which could allow this FISA warrant or
subpoena to be--to be utilized and not be limited simply to
someone for which there are specific and articulable facts is
an agent of a foreign power.
Mr. Lungren. If the gentleman would allow me to respond to
that, the standard proposed here is really the relevance
standard under which Federal grand juries in normal
circumstances operate. What the gentleman's amendment suggests
is that we go above that to specific and articulable facts.
Between the two, it seemed to me the standard that is well
recognized has been utilized in the grand jury circumstance
would be the appropriate one, that the system understands, that
the prosecutors understand, that the courts understand, and
that, in fact, has been used. And I thought that was the
subject of the inquiry we had during the hearings, which was
the concern people had that we didn't have any standard, we
didn't have a relevance standard.
And so in speaking with the gentlemen and women on the
other side and with the Chairman, it seemed to me, as I talked
with the Chairman and the staff, that a relevance standard
articulated specifically was sufficient for what we needed.
Mr. Berman. Well, I will perhaps pursue this later on.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Mr. Chairman, I----
Chairman Sensenbrenner. Recognized for 5 minutes.
Mr. Conyers. I want to find out if this is correct, and I'd
like to make sure that the gentleman from New York, Mr. Nadler,
is following this. Section 215 broadens significantly who such
orders can be used against, and herein lies the problem.
Records prior to the PATRIOT Act could only be sought if the
Government showed that the person whose records are sought is a
foreign power or an agent of a foreign power. Now the
Government need only show that the records are sought for a,
quote, authorized investigation, unquote. And I ask the
gentleman from New York: Is that a part of the problem that we
have with the 215 as it presently----
Mr. Nadler. Well, yet, the--yes, 215 has been expanded so
that not only are we relaxing the standard, but we're relaxing
the--against whom it--against whom it can be issued and for
what it can be issued. So it becomes a roving fishing
expedition generally, which is why narrowing the standard to
articulable facts, which was the standard for all these other
things before, is what we're trying to do.
Mr. Lungren. Would the gentleman yield on that point, Mr.
Conyers?
Mr. Conyers. I'd be happy to yield.
Mr. Lungren. See, here's the concern, and it goes to the--
to the scenario that the gentleman from California, Mr. Berman,
had brought up.
It's my understanding that if investigators were to learn
that someone lived with Mohammed Atta prior to the September 11
attacks but knew nothing else about the individual,
investigators, reasonable investigators I think would want to
find out more about the individual. They'd want to find out
about his credit, his bank, his travel, his phone records. And
under the specific and articulable facts standard, the
investigators would not be able to request this information
using Section 215.
Mr. Nadler. Would the gentleman yield?
Mr. Lungren. Yes.
Mr. Nadler. Would the gentleman yield?
Mr. Lungren. Well, it's not my time.
Mr. Conyers. I yield.
Chairman Sensenbrenner. The time belongs to the gentleman
from Michigan.
Mr. Conyers. I yield.
Mr. Nadler. Thank you. Well, Mr. Lungren, I think that if
someone was a roommate of Mohammed Atta, that would be a
specific and articulable fact connecting him to an agent of a
foreign power.
Why? Because Mohammed Atta----
Mr. Lungren. If the gentleman would yield, it's my
understanding, speaking with--speaking with representatives of
the Justice Department, in fact, that would not----
Mr. Nadler. I'm sorry, say that----
Mr. Lungren. But they would have to show a relevance
standard, but that falls short of specific and articulable
facts. The specific and articulable facts standard is too high.
Now, I will have to tell you, I am relying on those who
have pursued cases such as this, and the information I have is
that that is too high a hurdle. And, again, I would just
repeat, when we went into this, the whole argument we had when
we had the hearing--I can recall it--was don't you believe,
Representative of the Justice Department, we need to have a
relevance standard? Would you object to a relevance standard?
And the response was, no, in fact, that's how we proceed. We--
--
Mr. Conyers. All right. I'd like to yield to the gentleman
from California.
Mr. Berman. I think your point of limiting it to the agent
of a foreign power, that has meaning to me, and the problem--
the problem with that. I still think there is--you keep citing
hypotheticals that involve an association with a suspected
agent of a foreign power, and then say in order to do that,
let's just have a relevance standard.
This isn't a typical search warrant. This is a FISA search
warrant. And I still think--I guess I still think there is a
middle ground here that provides the Department with the
flexibility to use FISA in these cases, but that is a little
tighter than just a simple relevance standard, but not as
limiting as the person has to be a suspected agent of a foreign
power. And I just--I just want to harp on that because I may
want to come back to that.
I mean, I will vote for the gentleman's amendment because
I'm unhappy simply with the relevance standard, but I think the
right place to land on this is somewhere between the two.
Mr. Conyers. And so do I. I hope this discussion has
supported the Nadler amendment, and I return the time.
Chairman Sensenbrenner. The time of the gentleman----
Mr. Nadler. Would the gentleman yield for a moment?
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. Yeah, I think I'd like to pose a question to
Mr. Lungren in terms of the other two aspects of the Nadler
amendment relative to opportunity to challenge and disclosure--
or elimination of the gag rule after a hearing, because I think
what I find particularly interesting is that Mr. Nadler reaches
a conclusion that being a roommate of Mohammed Atta is an
articulable fact. And your--and I have the same memory. The
statement from the representative of the Department of Justice
that would not constitute an articulable fact says to me that
there is a role here, a more--a significant role for judicial
review than currently exists. If either Mr. Nadler or Mr.
Lungren would want to comment.
Mr. Lungren. I don't--I mean, if the gentleman is talking
about going beyond the FISA court? Is that the suggestion of
the gentleman?
Mr. Delahunt. No.
Mr. Lungren. Because that's the review that takes place
now.
Mr. Berman. Would the gentleman yield?
Mr. Delahunt. I'll yield to the gentleman from California.
Mr. Berman. Here's the problem. You equate this with a
grand jury investigation, but those are not secret warrants.
Someone has a right to challenge them. It is the combination of
this secret warrant which the bill now will allow the person
who is required to deliver the records to learn about. I don't
understand exactly what that means, the person who gets the
warrant can't disclose it. If the person who gets the warrant
isn't the person who can produce the records, somebody's going
to have to learn about it anyway. It's--but since the object of
this warrant, the target of this warrant is never going to know
about it, the notion of requiring something more than the
standard you'd have for a grand jury is real.
At the same time, I think people who have--where you can
provide specific and articulable facts that someone is the
target who was associated with the suspected agent of a foreign
power, I think the Justice Department should have FISA warrants
available to get those records in this fashion, and that's--I
think that's the whole point, is you can't just simply put this
off as, oh, this is like a grand jury investigation, because a
grand jury investigation, those warrants aren't secret and the
target of it can challenge the warrant, and there's a very
established procedure to raise with the judiciary in a public
way, the question of whether they're--the warrant was
overbroad.
Here we're not going to have that for very understandable
reasons, so let's give the FISA court some--a little bit more
specificity than simply a broad claim of relevance to make its
judgment about whether or not to issue the warrant.
Mr. Delahunt. Reclaiming my time, I think the point that
Mr. Berman is taking is the availability of a motion to quash
exists in terms of a criminal investigation, whereas it does
not exist in this particular case.
Mr. Lungren. Would the gentleman yield on that?
Mr. Delahunt. I'll yield.
Mr. Lungren. I would cite page 7, starting at line 16 of
the bill.
Mr. Delahunt. Okay.
Mr. Lungren. Which says that a person receiving an order to
produce any tangible thing under this section may challenge the
legality of that order by filing a petition in the special
panel established by the bill. That's a special panel under----
Mr. Nadler. Would the gentleman yield?
Mr. Lungren.--the FISA court, and then one would have, if
I'm not mistaken, the court of review shall immediately provide
for the record a written statement, and the petition of the
individual involved can go directly to the Supreme Court under
seal. That's a new provision.
Mr. Delahunt. I understand that. Reclaiming my time,
however, what we're talking about is the--it's the ISP, not the
target of the investigation. With that, I yield to the
gentleman from New York.
Mr. Nadler. Thank you.
Mr. Lungren, the fact is that as Mr. Berman said, here the
target of the investigation never hears about this. In a
grand--you can't simply analogize it to a grand jury situation.
In the grand jury situation, the target is served--knows about
it. He can make the motion to quash. He can make the motion to
limit the scope of the production--of the order. In this
situation, he doesn't know about it. The ISP, who is the--who
has the records, or perhaps the library or whoever else, or the
travel agency or the credit card company, they get the
subpoena, the target doesn't. The target never gets the
opportunity to quash, number one.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. I ask unanimous consent for an additional 2
minutes on this.
Chairman Sensenbrenner. Without objection, the gentleman
from Massachusetts will be given an additional 2 minutes.
Mr. Delahunt. I yield. I continue to yield to the gentleman
from New York.
Mr. Nadler. Thank you. So it is necessary to limit it
somewhat.
Now, I believe that in the situation that you've stated
before--and maybe--that if you can--if a known terrorist, a
known agent of al Qaeda is having lunch and splitting the
credit cards with two other guys, that's enough--that's an
articulable fact to connect those two guys with him and,
therefore, to justify under this standard. But--that's an
articulable fact connecting him to a foreign power, because if
a foreign power--al Qaeda is considered a foreign power.
But going further than that--but, again, I would be open
to--to some intermediate standard in this, say a simple
standard of relevance, where you can--where you can get
virtually anything and the target knows nothing about it and
can't move to quash or to limit is not sufficient. And I would
also say in response to what Mr. Lungren said before, the
second part of the amendment, it simply allows you to go in and
allows the recipient of the order, the ISP or the library or
the credit card company, to oppose the order in a Federal
court, not just a FISA court. Yes, the FISA court is a good
court to do that, but the Federal court can also do things in
secret. And a Federal court is just as able as a FISA court to
weigh the interests here, but a Federal court has the advantage
of not being only in Washington, D.C. If you're a local library
or a local car rental company in California, it's very
difficult for you to go to Washington to move in court to
oppose the order.
Mr. Delahunt. Reclaiming my time, I'd pose to Mr. Lungren
the question that was just--the observation and put it in the
form of a question made by the gentleman from New York, whether
he would have an objection to that aspect of this particular
amendment, the right to challenge in either the FISA or--
obviously in an in-camera proceeding in a Federal district
court.
Mr. Lungren. Well, before I respond--or in trying to
respond to that, I would just say I'm confused by some of the
comments that were made----
Chairman Sensenbrenner. Without objection, the gentleman
will be given an additional 2 minutes.
Mr. Lungren. Suggesting that a grand jury subpoena is in
all or most circumstances disclosed to an individual whose
records may be a subject of the subpoena. There are non-
disclosure orders given often with respect to those things, and
people are not aware of what goes on in the grand jury. So I'm
trying to figure out----
Mr. Delahunt. Right, but my response, reclaiming my time,
would be that that--under those particular circumstances, there
is judicial intervention and a non-disclosure order is issued
by a court in a traditional Title III criminal investigation.
That is not the case here. What we have is this automatic gag
order that is evoked in the legislation.
With that, I continue to yield to the gentleman from New
York.
Mr. Nadler. I think I've said what I wanted to say. This
has three sections. Again, if the specific and articulable
facts--and, again, this may show why we should have had a
hearing specifically on the--on the draft. If that's too high,
maybe we should find some other standard intermediate, because
a simple standard of relevance under these subject--under these
circumstances is too broad a fishing expedition. And, again, we
should allow the recipient of the order to go into any Federal
court in camera if the court--well, it would have to be in
camera. And don't forget the third part of the amendment, which
says that you can challenge the non-disclosure part of it, too.
In the interest of not having 50 amendments, I put all
three of them together. I would be willing to separate if
someone----
Chairman Sensenbrenner. The time of the gentleman from
Massachusetts has once again expired. The question is on
agreeing to the amendment offered by the gentleman from New
York, Mr. Nadler. Those in favor will say aye. Opposed, no?
The noes appear to have it.
Mr. Nadler. Mr. Chairman, I ask for the ayes and nays.
Chairman Sensenbrenner. A rollcall is requested and will be
ordered. Those in favor of the Nadler amendment will as your
names are called answer aye, those opposed, no, and the clerk
will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. I vote aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members in the chamber who wish to
cast or change their votes? The gentleman from Virginia, Mr.
Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Chairman Sensenbrenner. Further members in the chamber who
wish to cast or change their votes? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 12 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? For what purpose does the
gentleman from Arizona seek recognition?
Mr. Flake. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Flake. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Flake. In
Section 501(d) of the Foreign Intelligence Surveillance Act of
1978, as proposed to be amended by Section 8(c), strike ``in
response to'' each place it appears and insert ``with respect
to.''
[The amendment of Mr. Flake follows:]
Chairman Sensenbrenner. The gentleman from Arizona is
recognized for 5 minutes.
Mr. Flake. Thank you, Mr. Chairman. My amendment simply
strikes the words ``in response to'' under 215 in the bill and
adds the words ``with respect to.'' This amendment would
further clarify that a person can disclose to an attorney the
receipt of a 215 order to not only respond but to challenge the
order. While I don't believe that it's the purpose of this
legislation to deny consultation to challenge, I believe that
the concerns raised by Section 215 merit more specificity in
the bill. Thus, this amendment makes it clear that a person who
has received a 215 order may disclose that information to an
attorney not just to respond to the order but to challenge the
order.
This clarification provides additional protections for
librarians, bookstore and small business owners to be able to
have a clear, viable, legal recourse when faced with a 215
request. It seems clear that when we're talking about possibly
allowing the Government to access important and sensitive
records, we need to make sure that people's rights are
explicitly protected in the law. I urge my colleagues to accept
the amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Flake. I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from Arizona, Mr. Flake.
Those in favor will say aye. Opposed, no?
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments? Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. I have an amendment at the desk, number 4.
Chairman Sensenbrenner. The clerk will report Scott
amendment number 4.
The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of
Virginia. Add at the end the following: Section. Limitation on
authority to delay notice of search warrants. Section 3103(a)
of Title 18, United States Code, is amended (1) in subsection
(b), (A), in paragraph (1), by striking ``may have an adverse
result as defined in Section 2705'' and inserting ``will
endanger the life or physical safety of an individual, result
in flight from prosecution or the intimidation of a potential
witness, result in the destruction or tampering with the
evidence sought under the warrant, or seriously jeopardize or
delay an investigation of international or domestic
terrorism,''; and (b)----
Mr. Scott. Mr. Chairman, I ask unanimous consent that the
reading be waived.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Mr. Scott follows:]
Chairman Sensenbrenner. And the gentleman is recognized for
5 minutes.
Mr. Scott. Mr. Chairman, this amendment eliminates a wide
open catch-all for sneak-and-peek which says you can get a
sneak-and-peek warrant if the notification would seriously
jeopardize the investigation, which is any investigation, or
unduly delay a trial, any trial. And it also limits the
investigation and delay to terrorism cases.
What we're constantly told is the justification for the
sneak-and-peek extraordinary powers is that the Government has
to invade our privacy and spread information all over town to
protect us from terrorism. Yet we find that the vast majority
of the delayed notice cases do not involve terrorism cases at
all, but just ordinary street crime.
The amendment also places some reasonable time limit over
oversights and how long a notice can be delayed and how that
delay can be extended. With such invasive powers, restrictions,
and oversight--in restrictions, oversight is crucial. There's
no real remedy or serious disincentive for a mistake or other
unwarranted access to someone's privacy in these sneak-and-peek
warrants. So it's crucial that you have some kind of review and
oversight mechanisms.
One of the things it does, for example, is requires the
notice after 7 days, or you can extend that in 30-day
increments for as long as you want. But you have to show cause
for a continued reason to delay. We've been told that some of
these delayed notification indefinitely without end, and
there's no way ever to get notice. I think you need to continue
after so many years. I think at some point notice should be
given that your house was searched. That's the normal process,
and I hope you'd adopt the amendment.
Ms. Lofgren. Would the gentleman yield?
Mr. Scott. I yield.
Ms. Lofgren. I commend the gentleman for his amendment, and
I'd like to point out that this is a good reason why we have a
sunset clause. What's in the bill was written in haste. What
the gentleman has written by amendment is tightly drawn and
very thoughtful and a good example of why the sunset really is
important, and I thank the gentleman for yielding.
Mr. Scott. Thank you. I yield back, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. Thank you, Mr. Chairman.
I appreciate the concerns that Mr. Scott has, particularly
with regard to a reasonable period, and I am, in fact, drafting
an amendment that I hope to offer on the floor that will deal
with that aspect. And so I do have the same concerns, but I
think 7 calendar days is probably too short. And so I would
love to work with the gentleman from Virginia on the floor
amendment, if I can.
Mr. Scott. Would the gentleman----
Mr. Flake. I yield back----
Mr. Scott. Would the gentleman yield?
Mr. Flake. If I haven't yielded back, I would yield.
Mr. Scott. What time period did you have in your amendment
that you'll be considering?
Mr. Flake. I'm still working with others on that.
Mr. Scott. And if you'll continue to yield, I'd point out
that the 7-day period is a presumption that you can delay it 7
days, but you can get it extended in 30-day increments forever,
so long as you can show good cause.
Mr. Flake. I will have a similar provision in my bill, a
reasonable----
Mr. Scott. Well, with that, Mr. Chairman, I think I'd like
to work with the gentleman from Arizona, and I'll withdraw the
amendment at this point.
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments? The gentlewoman from
California, Ms. Waters, for what purpose do you seek
recognition?
Ms. Waters. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Ms. Waters of
California. Add at the end the following: Section--National
Security Letters. A national security letter shall not be
issued to a health insurance company under any of the
provisions of law amended by Section 505 of the Uniting--
Uniting and Strengthening America by providing appropriate
tools required to intercept and obstruct terrorism, US PATRIOT
Act of 2001.
[The amendment of Ms. Waters follows:]
Chairman Sensenbrenner. The gentlewoman from California is
recognized for 5 minutes.
Ms. Waters. Thank you very much, Mr. Chairman.
My amendment would prohibit Section 205, National
Security--National Security Letters, from being applied to help
insurance companies. Mr. Chairman, as it stands, the Government
can issue secret national security letters to help insurance
companies without any judicial review or approval. Therefore,
health insurance providers can be compelled to produce highly
private and personal medical information without any court
review. And the target of the national security letter would
never be notified that such confidential information had been
produced.
Mr. Chairman, we must be concerned and even ask how do
medical records pertain to terrorism investigations. What kind
of information will this lend to the investigations? There are
no clear answers to these questions. Records that are so highly
personal and that on their face do not seem to bear any
significance to terrorism investigations should be subject to
judicial review so that the Government will be required to
prove to a judge why such confidential information would be
important to such an investigation.
Mr. Chairman, in a criminal investigation, the Government
can only obtain such personal records through the issuance of a
search warrant. However, the Government must first prove that
there is probable cause that a crime has been or will be
committed.
Mr. Chairman, there is no reason why the Government should
be allowed to demand the production of such personal private
records without any judicial review or notice to the target.
And though my--through my very special amendment, checks and
balances can be injected into the production of our
confidential medical records.
I just think it needs no further explanation. I think that
the average individual would just be opposed to allowing their
medical records to be accessed without judicial review and
without any notice at all at any time to the target of the so-
called investigation. And I would simply ask for an aye vote
and reserve the balance of my time.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. I rise in opposition to the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Lungren. The question was posed, Why would health
records ever be relevant in a terrorism investigation and why
would you need a national security letter for investigation?
Well, let's see. Anthrax, dealing with other biological or
chemical agents. Someone might be treated for that to gain
immunities to that such that when they are dealing with those
particular contaminants they may not be deleteriously affected.
So I think one of the things we have to keep in mind is
what is the context of this law. This law is in response to the
terrorist attacks that we suffered on 9/11. The 9/11 Commission
specifically said the greatest complaint against the
legislative and executive branch of the Federal Government was
that we failed in a lack of creativity, a lack of imagination,
in other words, thinking within the box instead of outside the
box. So I am not as--I am not put at ease by suggesting that I
know all of the potential attempts that terrorists might make
to attack us.
Recently, I, along with other members of the Homeland
Security Committee, had an opportunity to go down and do a
day's review at the Center for Disease Control, CDC, which in
many ways is responsible for our response to potential attacks
such as those I've mentioned. If that is as great a concern as
was expressed to us on our review down there, it seems to me
for us to create a total exemption here for health records
because we can't anticipate where they might be relevant is a
step that I don't think we want to take.
Mr. Gohmert. Would the gentleman yield?
Mr. Lungren. I'd be happy to yield to the gentleman from
Texas.
Mr. Gohmert. Yes, if I might add, as a judge, we constantly
saw people and these criminals, terrorists that want to hurt
other people deal with dangerous elements. They are often
injured in trying to prepare things to injure others. And these
health records could be in the right situations--and I saw
those as a judge--helpful in determining have they been working
with these dangerous elements and components that would be used
later. They could be very helpful.
I yield back.
Mr. Schiff. Will the gentleman yield?
Mr. Lungren. Yes.
Mr. Schiff. I appreciate the gentleman yielding, and, you
know, I think that you make a number of good points. But I want
to ask you one question, and that is, the use of the national
security letter which has, I think, the least number of
safeguards applied to it, because there is no court review,
there is no going before a grand jury. And I guess my question
is: Under what circumstances is it necessary to use the
extraordinary remedy of a national security letter as opposed
to going to the FISA court for this information or going to the
grand jury for this information where there are greater checks?
When would it be necessary to use the national security letter
where there is really no oversight?
Mr. Lungren. I am sorry. I was----
Mr. Schiff. Let me try again.
Mr. Lungren. I apologize. I'm not showing disrespect to the
gentleman.
Mr. Schiff. And my question is not rhetorical. I generally
would like an answer. And that is, I think that you make a good
point that in an anthrax investigation or some other biological
kind of investigation, that you may need these records. My
question though is there are several methods of getting them.
In a criminal investigation you can go through the grand jury
where there's a check. In the FISA Court you need court
permission to get it where there's a check. With the national
security letter, there is the least checks and balances.
And my question is, why do we need to use the national
security letter in this context? What kind of circumstances
would require us to use the extraordinary remedy of a national
security letter as opposed to the more traditional approach of
going to the grand jury or going to a FISA court?
Mr. Lungren. Well, it's my understanding that these are
preliminary investigations before you have probable cause.
These are investigations that have not arisen to the level of a
criminal investigation, so you're not going to be doing a grand
jury investigation. They are by their very nature go to the
question of national security, and I guess the question the
gentleman is asking is why do we have these at all?
I am not the expert in that. I would just say I would not
support us creating an exemption for them in the--for health
records for the very reasons I gave.
Mr. Schiff. Will the gentleman yield again?
Chairman Sensenbrenner. The gentleman's time has expired.
Without objection the gentleman will be given an additional
minute.
Mr. Schiff. I appreciate what you're saying, but if you're
saying that there isn't probable cause so you can't get a grand
jury subpoena, and there's no foreign agent or foreign power
involved, so you can't go to the FISA court, then what do you
have as the basis for getting this very personal private
record, something not involving foreign power and something
less than probable cause? To get something that personal like a
medical record, I think there should be a stronger basis than
that. And there may very well be a good argument, but I just
haven't heard it yet today, and I'm--if somebody else on the
other side of the aisle can answer that question, I would be
delighted to know.
Mr. Issa. If the gentleman would yield?
Mr. Lungren. Yes, I'd be happy to yield.
Mr. Issa. I might remind the gentleman from California that
in 2001 when we had an anthrax actual event here, we did not
know whether it was foreign power, and if--and I don't know if
it was done--if there was an evaluation of people's health
records to find out if somebody showed the symptoms where they
might have either been a victim or in fact a perpetrator, that
that would have been broad, it would have had no probable cause
against them, and to the extent that people didn't have an
enzyme or some other indication, nothing further would have
happened. It would have been the classic example where national
security was at stake, thousands of people might have been
checked in order to be eliminated or to be included, and no
further action was taken.
To me, the anthrax, not scare, but events that we lived
through would be a good example.
Mr. Schiff. Would the gentleman yield?
Chairman Sensenbrenner. The gentleman's time is again
expired.
Mr. Schiff. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman from California is
recognized for 5 minutes.
Mr. Schiff. Two points on that. One is--and I'd offer my
colleague from California--do you know whether a national
security letter was ever issued in the anthrax investigation?
My guess is they probably used the traditional remedies of
grand jury subpoenas. And No. 2, there's not a grand jury in
the country that would turn down a subpoena in an anthrax
investigation of that nature.
So, again, there may be very good reasons why we need a
national security letter to get health records, but I'd like to
know what they are before I have to vote on this, and I still
am not quite hearing it. I yield back.
Mr. Delahunt. Would my friend yield?
Mr. Schiff. I'd be happy to yield to my colleague from
Massachusetts.
Mr. Delahunt. I understand the concerns about just simply a
blanket exemption that would deny the Government the
opportunity to examine health records, but I think the point
that the gentleman is making by inference is that there are no
standards whatsoever as a result of the PATRIOT Act. It's my
understanding that prior to the passage of the PATRIOT Act,
specific and articulable facts given reason to believe the
records pertain to an agent of a foreign power was the
standard. That, I dare say, given the experience that we've
had, given the hearings that we've conducted, ought to be
reinserted as part of the issuance of national security
letters. Give us a standard. That's what we're talking about
here.
And if any of my colleagues on the other side of the aisle
think that that is too high a standard, I would like to hear
them offer a rationale, because in the real world that is
simply not a very high standard, but it does invoke a
oversight, if you will, as opposed simply to allow the FBI,
based on an assertion, to issue a NSL that no one is aware of,
and, you know, maybe it requires a little more work. But this
isn't about conveniencing Government. It certainly, I don't
think, would warrant any delay. A delay would be an impediment.
This is about privacy rights, about individual liberties. This
is not balancing with national security concerns, but it's not
a matter of convenience for the Department of Justice. And I
think that's what our focus has to remain during the course of
our deliberations on the reauthorization of the PATRIOT Act.
Ms. Lofgren. Mr. Chairman?
Mr. Delahunt. I'll yield to the gentlelady from California.
Ms. Lofgren. I would just note that we have some options
here. One is really what the gentleman has said, which is to
set out standards that we agree are reasonable for the use of
these powers by the Government or to provide--three are certain
elements entitled to enhance privacy, and to fall back on
ordinary means to obtain such records. I don't know if anyone
is going to offer later an amendment relating to library
records or bookstore records, but the ability of people to read
what they want, to have their health care records respected is
something that means a lot.
Now, I'm going to support this amendment because if this
amendment passes, there are still plenty of ways for
prosecutors to obtain these records if they can make a case
that they're necessary. So I would yield to the gentlelady from
California further on that point.
Ms. Waters. I appreciate that. And I think the discussion
that we've had helps to illuminate why there's such concern
about what we do in renewing the PATRIOT Act. This Committee,
on PATRIOT Act I, acted in a most responsible way, and we came
together to produce the PATRIOT Act, and we took out a lot of
the problems that were originally identified with the PATRIOT
Act because Americans simply said, we want you public
policymakers to protect us from terrorism, but we do not want
you to destroy all of our civil liberties. And the's really the
national discussion about the PATRIOT Act. Can we produce good
public policy that will help protect us from terrorism, at the
same time not throw all of our civil liberties out of the
window. And this is a prime example of that.
Americans do not want national security letters that would
allow the Government to simply have access too all of our
medical and health records without showing probable cause. We
have in law the means by which this can be done.
Chairman Sensenbrenner. The gentleman's time has expired,
and without objection will be given an additional minute.
Ms. Waters. Thank you very much, Mr. Chairman.
This can be done with judicial review. And I'm simply
saying that we use what we have in existing law to obtain those
records if we can go and show probable cause--and I think any
judge would support that. I don't know why we have to throw
that out the window and have open access to these private and
personal records without that kind of review.
So I would simply ask my colleagues to support this
amendment. I think it is reasonable. I think it is the right
thing to do, and I think this is what Americans expect of us.
Chairman Sensenbrenner. The time of the gentleman has
expired.
The question is on agreeing to the amendment offered by the
gentlewoman from California, Ms. Waters. Those in favor will
say aye.
Opposed, no.
The ayes appear to have it.
Mr. Goodlatte. rollcall.
Chairman Sensenbrenner. rollcall is requested by the
gentleman from North Carolina. Those in favor of the Waters
amendment will, as your names are called, answer aye; those
opposed, no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? Gentleman from Illinois, Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are three further amendments?
Mr. Issa. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199 offered by Mr. Issa. At
the appropriate place in the bill insert the following new
section:
Section - Roving Surveillance Authority Under the Foreign
Intelligence Surveillance Act of 1978.
(a) Inclusion of specific facts in application. Section
105(c)(2)(b) of the Foreign Intelligence Surveillance Act of
1978 (50 USC 105(c)(2)(B), as amended by Section 206 of the USA
PATRIOT Act is amended by striking----
Chairman Sensenbrenner. Without objection the amendment is
considered as read, and the gentleman from California will be
recognized for 5 minutes.
[The amendment of Mr. Issa follows:]
Mr. Issa. Thank you, Mr. Chairman. On both sides of the
aisle I think that we all remember, those of us who were here,
how important it was to modernize the definition of a wiretap,
that in fact this section was created because the use of
cellular phones, and particularly disposing of cellular phones
on as often as a daily basis, had made the conventional wiretap
unusable. In this procedure we felt in October 2001, that we
were entering a new phase, one that would need oversight.
Today as part of our oversight during the sunset
reconsideration, I offer this amendment which deals with the
one most vexing issue, which is, are we giving people the
ability to go on jumping from phone to phone beyond the
original intent of a roving wiretap? To that extent this
amendment will require that the intelligence investigators
notify the FISA Court within 10 days each time it initiates
surveillance on a new communication facility pursuant to the
FISA--I have a terrible time with that, FISA, yeah, thank you,
FISA as in Issa--roving wiretap.
Mr. Chairman, I can see that we all understand that these
kinds of wiretaps can go on for months or years, and commonly
do, and they may stay with one cellular phone for months on
end. However, if somebody is disposing of their wiretap every
single day, every 10 days, under my amendment, we would be back
in informing the court that there was an expansion. This would
prevent what many have said would be the bugging of all of Los
Angeles. Just the opposite, this will give the court constant
oversight on what might be a very often basis, but I think
appropriately so to meet people's concerns, and I would ask on
both sides of the aisle, all of us who worked on the original
legislation, to vote for this perfecting amendment.
And with that, I yield.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from California, Mr. Issa.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it.
Mr. Issa. I would ask a recorded vote.
Chairman Sensenbrenner. Recorded vote is requested. Those
in favor of the Issa amendment will, as your names are called,
answer aye, those opposed, no, and the clerk will call the
roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
Mr. Berman. Berman is aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
Gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. How am I recorded?
The Clerk. Mr. Chairman, Mr. Delahunt is not recorded.
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Chairman Sensenbrenner. The clerk will try again to report.
The Clerk. Mr. Chairman, there are 34 ayes and no noes.
Chairman Sensenbrenner. And the amendment is agreed to.
Are there further amendments? The gentleman from
California, Mr. Lungren?
Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199 offered by Mr. Lungren of
California.
Add at the end the following:
Sec. 9 Sunset for Certain Provisions.
Sections 206 and 215 of the USA PATRIOT Act and the
amendments made by those sections, shall cease to have effect
on December 31, 2015.
Chairman Sensenbrenner. The gentleman from California is
recognized for 5 minutes.
[The amendment of Mr. Lungren follows:]
Mr. Lungren. Mr. Chairman, this is a fairly simple
amendment. It would put a 10-year sunset on Sections 205 and
215 of the PATRIOT Act. I believe that the sunset provisions in
the current law have given us an opportunity, a prod, if you
will, to look at certain sections of the PATRIOT Act in a way
that is probably more intense and deeper than we would
otherwise have done. Having attended, I believe, all of the
Subcommittee hearings on those provisions, as well as the full
Committee hearings, I'm satisfied that there is no evidence of
abuse in the substance of the law, nor abuse of civil liberties
in the application of the law by the Justice Department during
the time that these laws have been in effect.
Nonetheless, it seems to me that the two most controversial
provisions which were sunsetted in the original law are
Sections 206, the roving wiretap, and Section 215 which deals
with business records. For that reason, I thought that it would
be appropriate for us to have a sunset.
As a supporter of the bill it's my belief that sunsetting
these two provisions which have drawn a disproportionate amount
of attention, will in fact serve as an assurance to those
inside and outside of this body of our continued diligence.
My amendment is not in anyway, I would repeat, intended to
be a criticism of the implementation of the Act by the
administration. It is, however, an effort to show the American
people that we will remain vigilant in reviewing these
particular provisions. Even some members have said to me that
they support provisions such as these so long as there is a
terrorist threat. None have suggested to me that this terrorist
threat is going to go away within the next several years. As a
matter of fact, the President has recently suggested that this
is a generational fight because it is a generational threat
that we face.
For that reason, it is my believe that a sunset in the year
2015 is appropriate under the circumstances. It will contribute
to the continuation of vigorous oversight by this Committee, as
well as careful and conscientious implementation of this
legislation by this administration and the administrations to
follow. I do not in any way wish to suggest that this Committee
has been derelict in its duty. As a matter of fact, I would
congratulate this Committee for the work that it has done in
providing vigorous oversight.
But it is my belief that from time to time Congress has not
been as vigilant as it should be in oversight of a number of
different matters, and that having this with respect to what I
believe are the two most controversial aspects of this law,
will be of benefit.
I might say that there are some who have suggested that by
even offering such amendment, it will be interpreted as
criticism of the underlying law on my part, or criticism of the
administration, or criticism of the current Congress. This
amendment is not offered for that purpose. Rather it is in some
ways a tribute to the work that has been done by the
administration and by this Congress, specifically this
Committee, in dealing with the very difficult and delicate
balance that we must strike, and that is to prevent those who
would wish to destroy us and what we stand for by acts of
terror in ensuring that we do not tear up the Constitution in
the process of defending ourselves and those we represent.
With that, I yield back the balance of my time.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott?
Mr. Scott. Mr. Chairman, I have an amendment to the--second
degree amendment to the amendment.
Chairman Sensenbrenner. The clerk will report the second
degree amendment.
Mr. Scott. No. 7, it's No. 7.
The Clerk. An amendment to the Lungren amendment to H.R.
3199 offered by Mr. Scott.
Strike ``2015'' and insert ``2009.''
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
[The amendment of Mr. Scott follows:]
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I support
the direction the amendment is going in. This second degree
amendment will change the 10-year sunset to a 4-year sunset.
The 10-year sunset would allow this to go through without
review, clean through the rest of this administration and the
next term of the--the term of the President elected in 2008 and
almost through the term of the person elected in 2012. There
are many questions that we have.
As it's been pointed out, we have rushed through the first
passage of the PATRIOT Act, and sometimes these sunsets help
you get answers to questions that you may ask. For example, Mr.
Chairman, I've just been handed a letter dated July 11th, 2
days ago, it was sent 2 days ago, received today, from the
Attorney General responding to a question that was asked at a
hearing on April 6th, and now because of--I imagine because of
this hearing, we're finally getting an answer to a question.
We'll have questions like many of the amendments will address,
but I think it's important that we, because of the significant
intrusion in civil liberties, that we keep an eye on this, and
have the power of the sunset to require answers to questions. I
therefore would ask you to accept a 4-year sunset rather than
the 10-year sunset in the underlying----
Mr. Conyers. Would the gentleman yield?
Mr. Scott. I yield to the gentleman from Michigan.
Mr. Conyers. I want to thank you for doing this, Mr. Scott,
because 10 years is way too long. I mean every decade we take a
look at this, it will be new Congresses, new Presidents. There
could be a huge pile building up in the course of a decade. And
I think this amendment is made real by your amendment to the
amendment. I support it with great enthusiasm.
Mr. Scott. Thank you.
Reclaiming my time, Mr. Chairman, as the Ranking Member has
pointed out, you can go through the next President--through
this presidential term and another entire presidential term
without this thing coming up for renewal, and we would think
that the next President elected in 2008 ought to have the
responsibility to respond to some questions we may ask. We
don't know who that President may be.
I yield back.
Chairman Sensenbrenner. Does the gentleman from Virginia
yield back?
Mr. Scott. I yield back.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. Mr. Chairman, I
want to commend the gentleman from California for offering the
underlying amendment, and I strongly support it. There are a
number of reasons for having sunset provisions, and I have, and
many others have supported them in a number of areas, and I
would like to see them in other areas of our legislation that
we pass because it provides for more accountability on a part
of any administration, and because it gives us the opportunity
to have it automatically come back to us at some point in time
to make adjustments. Times change, circumstances change, and
when that occurs, it's appropriate for the Congress to have the
initiative to act to make those changes and improvements.
I do not agree with the substitute or the secondary
amendment offered by the gentleman from Virginia. We've just
been through a period where we've had a 4-year sunset, and
during that time there have been uncovered no abuses on the
part of the Justice Department of the provisions that we passed
in the original PATRIOT Act, and I see no reason to have this
on such a short leash. This will give us an opportunity to put
it over a longer period of time. It will help to establish the
precedent that we should impose sunsets like this in other
areas where we pass legislation. It will empower the Congress
in doing so because it will improve our oversight authority,
and it will improve our opportunity to make changes and
enhancement as time goes by, but to do it every 4 years is
simply too quickly, and given the fact that we are in a war on
terror that is going to go on for a long time, I think this is
an appropriate period of time for us to have a sunset
provision.
And I urge my colleagues to reject the secondary amendment
and to support the amendment offered by the gentleman from
California.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman.
I rise in support of Mr. Scott's amendment. I think we all
agree that there should be sunset provisions. The gentleman
just argued that this is about making sure we have sunset
provisions. He won't find an argument, I don't think, with any
of us on this side of the aisle about sunset provisions. It's
just a matter of how many years are we talking about?
This business of fighting terrorism continues to be an
evolving situation, where we're all learning more about the
various ways in which we could be attacked, and the various
ways in which we could provide more security, and I still think
we have a long way to go as we look at some of our
transportation systems and our ports, and I still think that
there is public policy to be developed that could be very
helpful in fighting terrorist as it relates to the way that we
bring in goods and products from other countries in particular.
So I think it is important for us to have good oversight.
Good oversight does not mean that you have a sunset provision
that's so far out that you don't do the reviews and make the
adjustments that you need to make. Good oversight means that
you're constantly looking, you're constantly reviewing, and I
think 4 years is a reasonable amount of time. And so I would
reject the original amendment by my colleague from California,
and support the alternative amendment by Mr. Scott because I
think it makes more sense and it gives us the possibility of
giving the kind of oversight to this very special era of
terrorism----
Mr. Conyers. Would the gentlelady yield?
Ms. Waters. I yield to the gentleman from Michigan.
Mr. Conyers. Thank you. I heard it mentioned that this
might set a bad precedent if we start sunsetting too much.
Well, we have 16 provisions that are sunsetted in the first
PATRIOT Act. This is the first new one that I've heard, and
this would just--this is very critical. I mean if we're really
serious about reviewing this, we can review it. Nobody will be
hurt if very few are revealed. And it also should be remembers
that many times we can't even figure out where an abuse has
occurred because of the general vagueness of the law as it
exists right now. So I wouldn't want anybody to take to heart
that there have never been any provisions of abuse because we
don't know about it. We don't know about any because we don't
have the process to find out about any. And so I support the
gentlelady from California and the gentleman from Virginia.
Mr. Lungren. Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentlewoman
from California. Do you yield back?
Ms. Waters. I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I reluctantly rise to oppose Mr.
Scott's amendment to my amendment because I would so much like
to see a Scott-Lungren amendment at sometime before I leave
this House.
I appreciate that there are differences here, and I
understand how we're trying to strike a balance here. I think
the point made by Mr. Goodlatte is a good one. We've just gone
through a 4-year sunset, and I would have to say we have looked
diligently and have found no record of abuses.
It is difficult to figure out what the date is. I'm
reminded that I have been gone so long that I'm now back here
when we're going to be considering a reauthorization of the
Voting Rights Act. People ought to understand the Voting Rights
Act sunsets. I was back here in the '80's, it was either '82 or
'84 when we last--'82. So we have a sunset that goes 24 or 5
years on that law. And yet there are changed circumstances as
the gentlelady from California mentioned. There are new things.
And folks should recall there was a real question when the
Ranking Member of the full Committee, when Mr. Hyde, when the
Chairman of the full Committee and I were all serving back here
in the '80's, there was a question whether the Voting Rights
Act was going to be reauthorized because of changed
circumstances of those States which feel the application of the
Voting Rights Act, and yet we made a decision that it was
appropriate. And then when we did that, we gave it this 20-some
year life with a sunset.
So the suggestion that a 10-year sunset is irrelevant or
somehow meaningless, I would reject based on the experience
that I've seen with another major law that we have dealt with.
And by the way, I commend the Chairman for his speech
before the NAACP this last week in which he mentioned that we
expect to deal with the reauthorization of the Voting Rights
Act even a year early. So it shows we don't have to wait until
the sunset. We always have the oversight.
I was trying to strike a balance here, and also I'm trying
to be practical. I'm trying to have a provision that will pass
and remain law when we get to the floor.
I yield back the balance of my time.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. I thank the Chairman, and I'm rising in support
of Mr. Scott's second degree amendment. But I think it would be
remiss of me to do that without applauding first the original
amendment by Mr. Lungren. Perhaps the most disturbing thing to
me about the Chairman's proposed mark from which we are working
today was that it had no sunset provisions in it, and one of
the things that I had said to my constituents after we passed
the original PATRIOT Act, was that one of the real important
things that we were able to insert into that bill was a sunset
provisions. And I reminded them that throughout our history
when we have had dramatic incidents occur, quite often the
legislative body has overreacted or has taken steps that needed
to occur for a temporary period of time, but should not be the
law henceforth now and forever.
I would like not to accept the underlying proposition that
terrorism will be with us forever, that forever we will have to
compromise our basic--some basic rights that I believe the
PATRIOT Act has compromised. And I honestly think we ought to
be reviewing this bill and its provisions on a regular ongoing
basis. And I'm sure there's nothing in the fact that there is
no sunset that prohibits us from doing that or would be nothing
that would prohibit us from going back and amending the PATRIOT
Act at any point. But legislative and political realities and
time realities as they are, suggest that we simply are not
going to do that in the absence of a sunset provision.
If 4 years from now circumstances have changed for the
better in some respects, I would be tremendously happy. If 4
years from now circumstances have changed for the worse,
technology may have advanced in some ways that would dictate a
change in some of the provisions of the PATRIOT Act--technology
is advancing so rapidly that we don't know what's on the
horizon 4 years from now. And the longer we delay forcing
ourselves to review any kind of encroachments, impediments,
stepping on the toes of the freedoms that our country has held
so dear over the years, I think the more of a disservice we do
to our country, and the more we really say to the terrorists
that we have given in to you by compromising on some of the
things that our Nation stands for and that our world should be
aspiring to stand for.
So I know this is a judgment, this is not a knock on what
Mr. Lungren has tried to do. I actually applaud what he has
done and I'm delighted that we are going to have some kind of
sunset in whatever goes out of this Committee--at least it
looks that way at this point--but given a choice between a
short or a longer one, I would certainly favor the shorter
sunset. And I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman's time has expired.
The Chair moves to strike the last word and recognizes himself
for 5 minutes.
I think all of the members and the public know that the
sunset that is currently contained in the PATRIOT Act was
something that I insisted upon when the PATRIOT Act was
considered immediately after September 11. And I did so because
whenever we talk about expanding law enforcement powers and
potential encroachment upon civil liberties, there is a very
subjective line that is drawn that nobody will know whether it
was done correctly or not until there has been some experience
under the new law.
I guess what puzzles me a bit is that the people who are
arguing for a shorter sunset now were the ones that were
arguing for a longer sunset 4 years go.
Be that as it may, we have had almost 4 years of experience
under the PATRIOT Act. There has been no section of the 16
sections of the PATRIOT Act where law enforcement powers were
expanded that has been declared unconstitutional by a Federal
court. There also have been no lawsuits brought under the Frank
amendment that provides a civil remedy with statutory damages
for Americans whose civil rights were violated under the
PATRIOT Act. And the Justice Department Inspector General has
found no civil rights violations under the PATRIOT Act, and he
was given that specific authority to investigate and reach
those conclusions as a part of those protections that this
Committee wrote in the PATRIOT Act in September and October
2001.
Having said that, let me say that what type of oversight is
done by any congressional Committee, this one or any of our
other Committees, is entirely dependent upon the Committee's
attitude toward oversight and specifically the attitude of the
Chairman of the Committee and the Chairmen of the Subcommittees
toward oversight. I think people who have seen my performance
here and prior to that in the Science Committee realize that I
am an oversight hawk, and I have been as much of a hawk against
an administration of my own party as Chairman of this Committee
as I was over NASA during the Clinton administration as
Chairman of the Science Committee. Oversight was one of the
constitutional responsibilities the Founders gave the Congress,
and in my opinion we should be doing more of it rather than
less of it.
But chairmen come and chairmen go, and I am term limited as
Chairman, and 2 years from now there will be another person
that will be sitting in this chair that may have a different
view toward oversight.
The oversight that Mr. Conyers and I have done on the
PATRIOT Act have been as a result of Mr. Conyers and my
insistence that the oversight be vigorous and pointed. And we
have had differences with the Justice Department and
specifically former Attorney General Ashcroft to the point
where I had to threaten to subpoena him in order for us to get
information that this Committee needed to have in the discharge
of our oversight responsibilities. I can say that in the last
couple of years the responses from the Justice Department had
been much better, and I comment them for that.
But again, this is my philosophy and that of Mr. Conyers
toward oversight, and that may change as time goes on.
I support, reluctantly, the longer sunset provisions, and
the reason I do that is because it will force a review. But let
me say, I don't think we should have different strokes for
different folks, saying that we should have a real short sunset
on the PATRIOT Act and a real long one on the Voting Rights
Act. The principle is the same. And I will support and
introduce legislation for a very long period of extension of
the Voting Rights Act because I think that the 25 years that
was passed in 1982 worked very well.
Having a sunset as proposed by Mr. Lungren, in my opinion
will get the debate on the PATRIOT Act out of the political
arena, and believe me, it is in the political arena now. And
having debate on the PATRIOT Act being a part of a presidential
election campaign and then the new Congress immediately
afterwards, this debate has not been the best in terms of
dealing with the actual issues of the PATRIOT Act.
So I would ask the members of this Committee to vote
against the Scott amendment for the shorter sunset, for the
Lungren amendment for the longer sunset, and I would urge
whomever succeeds me as Chairman of the Committee in January
2007 to be just as diligent in discharging oversight
responsibilities as I believe Mr. Conyers and I have been.
Mr. Watt. Mr. Chairman, could I ask for unanimous consent
for one additional minute and ask the Chairman to yield for a
question?
Chairman Sensenbrenner. Without objection, the Chair is
given an additional minute. I yield to the gentleman from North
Carolina.
Mr. Watt. The Chairman made a statement about somebody,
some period of time ago when we were doing the original bill,
opposing a shorter sunset. I wanted to make sure that we didn't
leave the wrong impression here. I don't have a recollection of
that on my part.
Chairman Sensenbrenner. If I can reclaim----
Mr. Watt. Maybe you were referring to somebody else.
Chairman Sensenbrenner. If I can reclaim my time, I can
understand why he didn't have a recollection on that because
the final sunset provisions were negotiated in the Speaker's
office, and it was the then Democratic controlled Senate that
wanted a real short sunset, and it was Mr. Conyers and I who
were present in that meeting that wanted a longer one.
Mr. Watt. A longer one or a shorter one?
Chairman Sensenbrenner. That was the difference between 3
years, 4 years and 5 years. We were for 5, they were for 3, and
we split the difference.
Mr. Watt. So it wasn't as dramatic as we're talking about
here today?
Ms. Lofgren. Would the Chairman yield?
Chairman Sensenbrenner. The Chair will ask unanimous
consent for an additional minute and yield to the gentlewoman
from California.
Ms. Lofgren. I will not use an entire minute. I would just
like to note for the record that during the weekend drafting
session on the PATRIOT Act I recommended a 2-year statute of
limitations, and I thank the gentleman for yielding.
Chairman Sensenbrenner. Duly noted.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. My time has expired.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I thank the Chairman. I would note that he
makes the observation that within the provisions of the PATRIOT
Act there appears to be no abuse that's been discovered by the
Department of Justice. Now, one could opine that the sunset
provision itself serves in some way as deterrence to abuse
because there will be inevitably hearings to review the
conduct. So I grant you the fact that, at least as it relates
to the provisions of the PATRIOT Act, there does not appear to
be any abuse that has been discovered so far.
At the same time I think we have to recognize that the
Inspector General of the Department of Justice did find serious
problems with the detainees being held in New York, but I don't
want to digress.
And I applaud the Chairman for his aggressive oversight. I
also applaud the gentleman from California. I think this is a
step in the right direction. I want it as a matter of record,
that my own opinion is that 2 years is perfect, and I would go
so far as to sunset the entire PATRIOT Act, because as the
Chairman has indicated, Chairmans come, Chairmans go,
minorities come, they change, and majorities come and change.
But there is a natural tension between the branches that's
healthy in a democracy.
And what I found particularly revealing during the course
of the hearings that were conducted by Mr. Coble with your
support, obviously, was that we received a level of cooperation
and collaboration from the Department of Justice that I have
not experienced in my previous 9 years of service on this
Committee.
I think as much as it is about the PATRIOT Act, it is also
about the role of Congress in terms of the relationship with
the Executive and the Judiciary, and it provides us with
leverage to encourage cooperation and collaboration, because I
know you, myself and other members, and not just this
particular Committee, have found at times it extremely
difficult to receive the kind of cooperation that ought to be
forthcoming from the Executive.
I'm reminded of serving on the Government Reform Committee
when there was a inquiry into the conduct of the Federal Bureau
of Investigation in Boston, and the Republican Chair of that
Committee, Dan Burton, as you did, had to threaten the Attorney
General of the United States with a contempt citation to secure
cooperation.
So I say to my colleagues on both sides--and by the way,
this is not a partisan issue, this is historic and is an
institutional issue. I don't think we can sunset often enough,
and I think if we chart a different course in terms of the
future, the sunset will serve the Congress well despite who the
Chairman is. And again, I would compliment the Chair on being
aggressive in terms of oversight, and I would go so far as to
say before you move on, I would commend to you consideration of
establishing within the Committee an additional Subcommittee to
deal specifically with the issue of oversight in
investigations.
It's been done under Chairman Hyde in the International
Relations Committee, and I think it's overdue and it's needed.
With that I'll yield back.
Mr. Scott. Would the gentleman yield?
Mr. Delahunt. I yield to the gentleman from Virginia.
Mr. Scott. Thank you. I thank the gentleman for yielding.
As the gentleman from Massachusetts is pointing out,
whatever success there has been with the PATRIOT Act I think is
because of the sunset, not in spite of the sunset. We've had
problems with the national security letters, reclassification
or misclassification of some cases of terrorists, racial
profiling, as the Chairman has indicated, we've had to threaten
subpoenas, and clearly there's been more cooperation from the
administration in those inquiries involving sections with a
sunset than those involving sections without a sunset. So I
would hope that we would keep a sunset that would at least
require the next President of the United States to have some
time during his administration where he'll have to respond to
questions.
Thank you.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Arizona, Mr. Flake.
Mr. Flake. I just want to say in Arizona we love sunsets. I
particularly like sunsets of all Government programs, but in
this case I would thank the gentleman from California for
offering this compromise, this 10-year sunset, and I think it's
appropriate and I plan to support it.
With that I yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, you
raised the question of comparing the sunset to the sunset of
the Voting Rights Act. I think there's a difference and all
sunsets are not equivalent. This sunset is dealing with very
sensitive, as I've said before, as we've all said before, very
sensitive powers that we're giving Government that pose
potential threats to the liberty that we all hold dear.
Now, it's easy to say there have been abuses, and maybe
there haven't, although there's still a lot of secrecy, and I
wouldn't agree that there have been no abuses. But even if
there hadn't been, doesn't mean there won't be next year under
the next Chairman of this Committee, under the next President,
under the next Attorney General.
Sunsets in this respect make us keep reviewing it, and
that's fine. What is the danger of a sunset, that it makes us
do a little more work? So what? It keeps it front and center,
and this kind of thing ought to be kept front and center. The
Voting Rights Act imposes certain requirements on States to
make sure that their citizens get the rights they're entitled
to. Should it sunset? Well, maybe, because maybe those States
now have changed and don't have to have a Federal imposition on
them to guarantee those rights. But worse comes to worst, so
what again? They're giving the rights that ought to be given.
Here the sunset is to make sure that our citizens have
liberty and rights, and we ought to have a fairly frequent
sunset. I commend the gentleman from California for offering
this amendment. I wish it were for more than just these two
sections, and there will be amendments for sunsets for more
sections before this markup is over, but 10 years is too long.
Lots of things can happen in 10 years. Why shouldn't the
next President have to be concerned about--a 4-year sunset
means the next President, not this one. Why shouldn't the next
President have to be concerned about justifying retention of
these police powers? We don't know how long the war on terror
is going to go on, we don't know how it's going to be waged. We
don't know if abuses are going to occur.
And a 4-year amendment, and if that amendment--and if that
fails, we'll offer an amendment for a 6-year sunset--at least
keeps our feet to the fire. That's what this is about, keeping
our feet to the fire to keep our eye on the ball to protect the
liberty of American citizens against possible abuses, and it's
nothing to say we're not saying anything by this amendment or
by trying to speed up this amendment by the 4-year secondary
amendment, to say that the current Attorney General or the
current President or the current Chairman of this Committee, or
the current anybody, is doing anything right or wrong. It's
simply saying that it's a useful tool to make sure that we
focus on it more than once every 10 year, and frankly, the
liberties of Americans are worth focusing on a lot more often
than once every 10 years.
So I support the Scott secondary amendment, and I yield
back.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, I oppose the Scott amendment and I
expect to also oppose the underlying amendment, and I want to
explain why.
It's likely on the underlying amendment that I'm going to
find myself in the good company of many of my colleague on the
other side of the podium, though not necessarily for the same
reason. They feel that the 10-year period is too long. I happen
to feel that we don't need sunsets at all for the reasons that
have already been stated by many others.
The PATRIOT Act has worked well. There have been no abuses.
And regardless of whether there are sunsets or not, I am sure
that the oversight will continue, and that can address any
possible abuses that might come up.
I'd also like to note, Mr. Chairman, that it seems to me
that the arguments made against the 3-year sunset could also be
made against the 10-year sunset. As I say, the PATRIOT Act has
been working well.
So I just wanted to state for the record that I am going to
oppose both the Scott amendment and the underlying amendment as
well.
I'll yield back.
Mr. Weiner. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner.
Mr. Weiner. Thanks, Mr. Chairman. I have yet to really get
an understanding from the sponsor of the amendment--and
frankly, I don't even--from the base amendment, and frankly
from you, Mr. Chairman, of what's the harm of going to 2009? I
think the Chairman deserves a great deal of credit for (A)
inserting the sunset, but also generally the way that we've
taken on issues here.
I mean essentially what--I think in our Committee under
your leadership for the first time in a very long time we did a
reauthorization of the Justice Department, something that had
gone on for years without being reauthorized.
Frankly, what I would say that this is, is essentially a
forced reauthorization. I think it has been salutary to have
the sunset provisions in because it's gotten people on both
sides of the issue having a discussion about it. It's forced us
to be at this point--I doubt very much if there were not sunset
provisions in the original we'd be having hearings right now.
And I think on both sides of the aisle concerns have been
expressed about how far reaching or whether it was not far
reaching enough.
I am puzzled by whether or not making it 2009 in any way
weakens our chances on the floor. That's the only argument I've
heard from the gentleman from California about why 2015 rather
than 2009, it strikes a so-called balance. Frankly, the
concerns that have been raised by opponents would be further
assuaged by having a shorter sunset, not a longer sunset, that
if you believe that you're trying to get votes from people who
are like myself, who are kind of some parts of the bill we've
got no problem with, some parts of the bill we have serious
problems with. There are people on the far right and far left
who expressed concerns.
If you truly want to give the tools to the Justice
Department for additional time, and you don't want the bill to
be defeated all together, a shorter sunset seems to be better
way.
And also from the day-to-day practical prosecution of the
law, I find it hard to believe that any prosecutor would say or
any criminal would say, well, here's a decision I'm going to
make because we've got a sunset coming up in a few years. I
don't think any terrorist is going to say, all right, I'm going
to hold off a little longer because we have a sunset coming up
in 2009. So I'm in 2007 contemplating a crime, but I'm going to
wait because I think it's going to sunset.
I mean practically speaking, that's not going to happen,
and if that makes them push off their plans for terrorism, then
we should have sunset every year because maybe they'll just
keep putting it off and see if we don't renew it.
I guess my simple question is--and it hasn't been answered
here--is what's the matter with a shorter sunset? How does it
harm anyone? Why does the Justice Department mind that much?
It's not an indictment of them or it's not ad argument that
they've done things poorly. What it is, is that the present
sunset has been a successful fulcrum, (A) to get this back
before this Committee; (B) to get a full discussion of it
before the country.
You know you say that there haven't been abuses. We've also
found out in a lot of cases there hasn't been a great deal of
use of it. That's something worth knowing as well that would
have not come out, would not have had the pressure to come out
were it not for a shorter sunset.
And with that, I yield the balance of my time to the
gentleman from Massachusetts.
Mr. Delahunt. I applaud the gentleman for his, I think,
insightful comments. I think we should be thinking about when
this legislation comes to the floor because there are concerns
there, and only has to remember some of the votes that we have
witnessed that have occurred on the Floor because people have
legitimate concerns.
And I dare say, this sunset, this sunset and the duration
of the sunset--and it should be expanded in my opinion--is
something that I think the majority of members of the House
will find--will welcome.
Just to support my earlier comments about oversight and the
relationship between the branches, someone just passed me a
press release from Senator Collins and Senator Lieberman dated
June 14, who were speaking about the need for the
administration to fulfill its obligations under the National
Intelligence Reform and Terrorist Prevention Act of 2004, and
I'll submit this into the record.
Chairman Sensenbrenner. Without objection.
[The press release was not available in time to be included
in this report.]
Mr. Delahunt. They noted a series of reports, strategic
plans and preliminary actions whose deadlines have come and
gone. Among them, the National Transportation Strategy, the
first step towards streamlining the Federal security clearance
process, a number of port security strategic plans, aviation
security staffing standards, a baggage screening cost-sharing
plan, three reports on diplomatic initiatives to root out
terrorists.
I dare say that if we do not have, as Mr. Weiner indicated,
the leverage, the fulcrum, you know, even if we mandate
reports--it would be interesting for me if both majority and
minority staff would review the reports mandated by the PATRIOT
Act and other antiterrorism statutes to see whether they've
been filed.
Chairman Sensenbrenner. The time of the gentleman from New
York has expired. The question is----
Mr. Schiff. Mr. Chairman? Mr. Chairman, to your left.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. I wouldn't need to make it quick if--well,
anyway.
Thank you, Mr. Chairman. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I want to join in support of the secondary
amendment, and the reason I wanted to be recognized on this--I
know many others have spoken already, but I frankly think this
is probably the most important amendment we're going to have
today, and indeed I think one of the most important provisions
that we in the original PATRIOT bill was the sunset provision
that the Chairman insisted upon. And at the time I strongly
supported a 2-year sunset, even a shorter leash.
My concern with that sunset being 4 years originally was
that it might take us 4 years before the Committee, as a
Committee, really did the kind of vigilant oversight that we
should do. The PATRIOT bill was basically a bargain. It said we
will give law enforcement greater power, and in exchange we
will do greater oversight.
I think many of the powers of the PATRIOT bill needed to be
conveyed to keep pace with changes in technology and changes in
the way that terrorists operated. But much as I was concerned,
I think that with the 4-year sunset the Committee as a
Committee did not do oversight until 3\1/2\ years into the
sunset. And I appreciate what the Chairman did with the Ranking
Member individually, but the Committee as a Committee, in terms
of holding hearings, having witnesses, and giving each of the
members a chance to participate in the oversight really didn't
happen till 3, 3\1/2\ years into the life of the PATRIOT bill.
And I'm afraid that if we extend this by 10 years, it will
be 9\1/2\ years before we go through this exercise again, and
that's just too long. It's not just a function of the Chairman
not being the Chairman. Most of the members of this Committee
will no longer be on the Committee. Heck, most of the members
of this Committee will probably no longer be in the Congress
who were present when the bill passed and are present today.
To put things in context, my colleague from New York, Mr.
Weiner, he'll be finishing his second term as mayor of New York
when this comes up again. [Laughter.]
My 3-year-old will be a teenager, and I'm not ready for
that. [Laughter.]
I'm not ready for either of those things. [Laughter.]
No, I am ready for Anthony to be mayor.
We reauthorize departments with great frequency. We
reauthorize our transportation bill every 6 years. There's
little risk, unless there are great abuses, that if we
sunsetted this bill in another 4 years, that it wouldn't be re-
extended in 4 years. I don't expect there will be abuse of the
bill or dramatic abuse of the bill, and I would expect that
with a 4-year sunset, the worst that will happen is that we'll
be back here in 3\1/2\ years, and I would hope sooner, to be
looking at some of these provisions again.
So the downside--I can't even find the upside--in that it
compels us as a Committee to do the oversight that we should be
doing, I think, is substantial. And probably a more realistic
sunset date would be the single greatest step that could be
taken by the majority to outreach to the minority to have a
reauthorization that enjoys very broad bipartisan support.
With that, Mr. Chairman, I yield back.
Chairman Sensenbrenner. The question is on the Scott second
degree amendment to the Lungren amendment. Those in favor will
say aye? Opposed, no?
The noes appear to have it.
Mr. Conyers. A record vote.
Chairman Sensenbrenner. Record vote is requested and will
be ordered. Those in favor of the Scott amendment to the
Lungren amendment will, as your names are called, answer aye;
those opposed, no. The clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? The gentleman from South Carolina, Mr.
Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Chairman Sensenbrenner. There are no further members who
wish to cast or change their vote. The clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 21 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
The question----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Mr. Chairman, I have a secondary amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, I have two amendments at the desk.
Mr. Nadler. The 2011.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Second degree amendment to the Lungren amendment
to H.R. 3199, offered by Mr. Nadler. Strike ``2015'' and insert
``2011.''
[The amendment of Mr. Nadler follows:]
Chairman Sensenbrenner. The chair is prepared to declare
the Committee in recess until 2 o'clock, at which time, Mr.
Nadler will be recognized for 5 minutes to explain his
amendment. Members will please be prompt.
The Committee is in recess.
[Whereupon, the Committee was recessed from 12:27 p.m. to
2:07 p.m.]
Chairman Sensenbrenner. A working quorum is present.
When the Committee recessed for lunch, pending was an
amendment offered by the gentleman from California, Mr.
Lungren, to which a second degree amendment by the gentleman
from New York, Mr. Nadler, had been offered. We will now resume
consideration of the Nadler second degree amendment, and the
gentleman from New York, Mr. Nadler, is recognized for 5
minutes.
Mr. Nadler. Thank you. Thank you, Mr. Chairman.
Mr. Chairman, this amendment, this secondary amendment
doesn't need too much discussion. Most of the discussion I
think we can just read into the record, the discussion on the
last secondary amendment for the 4-year extension. This simply
says instead of a 10-year extension, as Mr. Lungren would have
it--sunset, rather--it should be a 6-year sunset.
Before we broke, we had discussion on Mr. Scott's amendment
for a 4-year sunset, and the majority thought that that was too
fast, that 10 years was a better idea. I am compromising at 6
years.
Now, one objection--and frankly, again, just to be brief,
when you are dealing with liberty and with giving Government
more power, then I think 10 years is just too long. Now, it had
been expressed that maybe if a 4-year extension was too short
and, among other reasons, that would come into effect in 2009,
it would put it into the next presidential election--well, this
would not. This would be 2011. It would be the third year of
the next presidential term. It doesn't get mixed up in party
politics in the 2008 election.
And again, if we think these things should be sunsetted--
and I certainly agree they should be--a 6-year sunset is
reasonable. Over 6 years we can see what happens. And to
require Congress to look at things every 6 years, things that
potentially threaten people's liberties, albeit maybe we have
to do it because of terrorism, is not too often to do. So I
think 6 years is a reasonable amount of time, and I offer the
secondary amendment to what I regard as a good amendment by Mr.
Lungren.
I yield back.
Chairman Sensenbrenner. The chair recognizes himself for 5
minutes in opposition to the amendment.
I rise in opposition to the amendment. The gentleman from
New York had it half right. He was right when he said that all
of the arguments that were made in favor of the Scott amendment
applied to his amendment. What he omitted is that all of the
arguments made against the Scott amendment also apply to this
amendment. And since the Scott amendment was rejected, I think
we ought to reject this----
Mr. Nadler. Would the gentleman yield for a second?
Chairman Sensenbrenner. Absolutely.
Mr. Nadler. All the arguments but one, as I pointed out.
One of the arguments against the Scott amendment was that it
would put it into the 2008 presidential election because it
would sunset in 2009. This does not do that. This would sunset
in 2011, the third year of a presidential term, and that
argument----
Chairman Sensenbrenner. And reclaiming my time----
Mr. Nadler.--is inapplicable.
Chairman Sensenbrenner. Reclaiming my time, 2015 is the
third year of a presidential term, too. And I yield back the
balance of my time.
The question is on agreeing to the Nadler second degree
amendment to the Lungren amendment. Those in favor will say
aye? Opposed, no?
The noes appear to have it.
rollcall will be ordered. Those in favor of the Nadler
amendment to the Lungren amendment will, as your names are
called, answer aye; those opposed, no. And the clerk will call
the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. Pass.
The Clerk. Mr. Green, pass. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
[No response.]
The Clerk. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
[No response.]
The Clerk. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from Illinois, Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. Further members in the chamber who
wish--The gentleman from Virginia, Mr. Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 9 ayes and 18 noes.
Chairman Sensenbrenner. And the second degree amendment is
not agreed to.
The question is on----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott, for what purpose do you seek recognition?
Mr. Scott. Mr. Chairman, I have a unanimous consent request
for a Scott-Lungren amendment.
Chairman Sensenbrenner. The gentleman will state the
request.
Mr. Scott. The amendment reads that the provisions shall
cease to have effect on December 31, 2005--excuse me, 2015. The
amendment would be to insert language ``and after,'' so it
would read, ``would cease to have effect on and after December
31, 2015.''
Chairman Sensenbrenner. Without objection, the modification
to the amendment is agreed to. Hearing none, so ordered.
The question now occurs on the Lungren amendment as
modified. Those in favor will say aye? Opposed, no?
The ayes appear to have it.
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman from California
wish to ask for a rollcall?
Mr. Schiff. No. I just had an amendment at the desk.
Chairman Sensenbrenner. The other gentleman from California
asked for a rollcall. rollcall will be ordered.
Those in favor of the Lungren amendment as modified will,
as your names are called, answer aye; those opposed, no. And
the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
[No response.]
The Clerk. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Chairman Sensenbrenner. Further members in the chamber who
wish to cast or change--Yes, the gentleman from Arizona, Mr.
Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Chairman Sensenbrenner. Further members in the chamber who
wish to cast or change their votes? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 26 ayes and 2 noes.
Chairman Sensenbrenner. And the amendment is agreed to.
Are there further amendments?
The gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. Chairman, I know my colleague from New York
has a burning sunset amendment. I would ask to be recognized
after one of my colleagues, after Mr. Nadler.
Chairman Sensenbrenner. The chair is trying to share the
wealth, but if this is not the time for the gentleman from
California to partake of the wealth, for what purpose does the
gentleman from New York seek recognition?
Mr. Nadler. Thank you, Mr. Chairman. I appreciate the
forbearance of the gentleman from California.
Mr. Chairman, I do think--I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, I have three Mr. Nadler
amendments.
Mr. Nadler. It says ``strike section 3.'' This is the one
by Mr. Nadler and Mrs. Lofgren.
The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler
and Ms. Lofgren. Strike section 3 and insert the following:
Security. 3. Sunset. Section 224 of the USA PATRIOT ACT is
amended by--(1) Inserting ``206'' in section (a) after
``205,''; (2) Inserting ``215'' in section (a) before ``216,'';
and (3) Striking ``2005'' and inserting ``2015.''
The amendment of Mr. Nadler follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, this amendment, which is short, is not quite
self-explanatory. What it does is extend the 10-year sunset,
which we have just adopted for two sections, to the other 14
sections that are currently sunsetted under the law and that
under the bill in chief would be permanent. This simply says
that all the reasons for the sunsets that we just passed for 10
years for the two existing sections, for these two sections, we
should do for the other 14 sections that do sunset now, and
instead of permanentizing them, we should sunset them after 10
years.
So I take from Mr. Lungren the 10 years and we should--all
the same reasons why the two sections that we just did should
be sunsetted in 10 years apply to these sections, too. They are
extensions of various powers. We are to review them. This
includes Section 201, Authority to Intercept Wire or Electronic
Communications Relating to Terrorism; 202, Wiretaps Relating to
Computer Fraud and Abuse Offenses; Section 203, Authority to
Share Electronic, Wire, and Oral Interception Information with
Foreign Intelligence Operations; Duration of FISA Surveillance
of Non-USA Persons; Seizure of VoiceMail Messages Pursuant to
Warrants; Pen Register and Trap and Trace; Interception of
Computer Trespass Communications; and so forth.
All of these are basically new powers granted by the
PATRIOT Act. All of them were sunsetted now; all of them, I
think, should be sunsetted in 10 years for the same reasons.
And I urge the adoption of this amendment, and I yield
back.
Ms. Lofgren. Would the gentleman yield?
Mr. Nadler. Oh, yes. I do not yield back, I yield to the
gentlelady from California.
Ms. Lofgren. I will be very quick. As the cosponsor of the
amendment, I won't repeat what Mr. Nadler said, but I would
merely note that some of the provisions that would be covered
by the amendment really are provisions that relate to
technology. And it is important both for civil liberties, but
also from the technological point of view, that we have a
schedule for reviewing those issues. Because the technology, I
guarantee you, will change, and if we don't have a set time for
us to review those changes, we may end up with a consequence
that we never intended. And I think that is an additional
reason to support the amendment.
I thank the gentleman for yielding, and yield back.
Chairman Sensenbrenner. Does the gentleman from New York
yield back?
Mr. Nadler. Yes, I do.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa?
Mr. Issa. Thank you, Mr. Chairman. I rise in opposition to
the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Issa. Mr. Chairman, I know this is well-intentioned,
but I would like to point out to all of my colleagues that when
we did this, the PATRIOT Act, initially, one of the reasons for
the sunsets was this was new. And we wanted the 4 years in
which to observe what happened. We have had not only the 4
years but countless hearings. We have looked at this in detail.
Mr. Lungren, appropriately, looked and said although there has
been no misconduct, he would like to, and we have now passed an
amendment to hold open a little bit longer, or a lot longer
period on two provisions.
But I think that we fail to do our job as a Committee if we
simply punt and say, well, we are going to keep it all open.
And I would suggest that, if we are going to do that, then let
us simply amend I think it is Section 28, and, you know, we
could do everything. We could sunset the entire Homeland
Security, for that matter, every 10 years.
I think there is a point of, if we work together
diligently--and I promised my office to work together just as I
have seen the Chairman's office working--to make sure that we
have, if we have concerns, we have areas both here and,
potentially, on the floor, that we reach those amendments on a
bipartisan basis so that we can make sure that we don't need to
simply leave something unanswered and hope for the best for the
next 10 years.
I would ask my colleagues, at a minimum after this
amendment, to delay any further amendments on sunsetting in
favor of let's get to substantive changes that might be
appropriate so that we can not have sunsetting, but rather have
a law which we are confident will last for the entire decades
to come.
Mr. Nadler. Would the gentleman yield?
Mr. Issa. I would yield.
Mr. Nadler. Thank you. Now, this is, as far as I know, the
last amendment on sunsetting. But I would point out that
nothing in sunsetting--we don't hold it open for 10 years. That
is not correct. The law is the law. This makes us come back and
review it in 10 years. And certainly nothing that says review
it in 10 years precludes our reviewing it in 10 minutes or 10
months or next year, as we ought to on a continuing basis.
But at the minimum, since these are police powers that have
to balance carefully, we ought to at least make sure that our
successors--or us, if we are still here----
Mr. Issa. I appreciate the gentleman from New York. And I
would reclaim and yield the balance of my time to the gentleman
from Texas.
Mr. Smith. I thank the gentleman from California for
yielding.
Mr. Chairman, I, too, oppose this amendment, which applies
to all 16 of the sunsetted provisions of the PATRIOT Act. The
PATRIOT Act was a long overdue measure aimed at first closing
gaping holes in the Government's ability to collect vital
intelligence information on the global terrorist network, and
second, protecting Americans from another attack. It was
supported overwhelmingly by the American people and passed by a
margin of 98-1 in the Senate and 347-66 in the House.
Even the ACLU said, in a recent press release, that ``most
of the voluminous PATRIOT Act is actually unobjectionable from
a civil liberties point of view'' and that ``the law makes
important changes that give law enforcement agents the tools
they need to protect against terrorist attacks.''
In order to make sure that we did not overreact to the
September 11 murder of over 3,000 innocent Americans by
enacting legislation that went too far, we placed sunsets on
some PATRIOT Act provisions. Nearly 4 years later, successes in
terrorist investigations show not only that the PATRIOT Act was
the right way to go, but also that the sunsets were not
necessary. There has not been even one substantiated abuse of
power under the PATRIOT Act, but there have been terrorist
prosecutions. The sunsets should not be reinstated across the
board.
The information sharing powers created by Section 218, for
example, which would be sunsetted again by this amendment, were
instrumental in disrupting terrorist cells in New York, Oregon,
Florida, and Virginia, and in prosecuting a number of
individuals tied to terrorist organizations.
The Section 212 power to authorize electronic
communications service providers to disclose records to the
Government if there is the threat of death or serious injury,
which would be sunsetted again under this amendment, allowed
investigators to prevent the bombing of a high school and
allowed investigators in Texas to apprehend an individual who
threatened to attack a mosque.
This amendment would have a chilling effect on current and
future investigations because of the uncertainty a sunset
places on the direction of an investigation. If investigators
believe that they may no longer have the ability to share
information, obtain roving wiretaps, or obtain certain business
records, they may hesitate to pursue the investigation.
Mr. Chairman, sunsets may have had a proper place when they
were enacted at the beginning of this landmark legislation in
the aftermath of September 11th, but since then the
effectiveness of the PATRIOT Act has been proved many times
over. There should be no sunsetting of all these provisions or
any sunsetting of our willingness or ability to keep America
safe.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I agree that most of the, or at
least a lot of the PATRIOT Act is in fact good law. In fact,
this Committee reported a version of the PATRIOT Act
unanimously. And so we felt that a lot of it could have been
passed without a lot of controversy. People have said that it
has worked okay. There have been misclassifications of
terrorism cases and there have been problems, so when the
suggestion is made that there are no problems, I don't want
that comment to go without controversy. We have seen, because
we have had the sunsets, we have had much better cooperation
from the administration because of the sunsets. The Chairman
has indicated that we had to threaten a subpoena to get the
cooperation, at least on some issues, from the Attorney
General.
And I would hope that we would adopt this. I think 10 years
is too long, but we have already had that debate. So long as we
find on reauthorization, when it comes up for reauthorization,
that it is worked, there won't be any problem reauthorizing it.
It just ensures it will have oversight. So I would hope that we
would adopt the amendment, and I yield----
Mr. Conyers. Would the gentleman from Virginia yield?
Mr. Scott. I will yield.
Mr. Conyers. Well, I want to agree with you, because the
original PATRIOT Act that was unanimously voted out had 2-year
sunset provisions. Two years, not four, and certainly not 10.
And so I would like to remind the Committee that our collective
work product was far more carefully tailored than now.
And I couldn't agree with you more. You know, a member
making a statement that there are no PATRIOT Act violations
does not, unfortunately, turn it into gospel. That is just one
person's view. We are putting together a paper here that shows
that there were dozens and dozens of violations that have come
to our attention, and probably others that we haven't found out
about yet.
Mr. Scott. Thank you very much. And reclaiming my time, I
yield to the gentleman from New York.
Mr. Nadler. Thank you. I thank the gentleman for yielding.
I just want to add that, you know, as was said a moment
ago, much of the Patriot--and the ACLU said much of the PATRIOT
Act is unobjectionable and is fine and uncontroversial and no
one objects to it. But parts of the PATRIOT Act, especially the
parts that were sunsetted, get very expanded and perhaps, in
some hands and in some times and in some places, dangerous
powers to police authorities. They may not have been misused;
they may have been misused. Who knows in the future? They may
be very necessary in the war on terrorism for now, maybe for
the future. But the one thing that sunsetting says is that we
should not get too comfortable with expanded police powers in
this country. We should be nervous about expanded police powers
in this country, because they threaten liberty. They may be
necessary in an age of terrorism, but we should be nervous
about them, we should be grudging about them, and we should
review them. And all the sunset provision says is review those
expanded police powers in 10 years. It is worth the extra time
for this Committee to protect liberty.
Thank you. I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from New York, Mr. Nadler, and the
gentlewoman from California, Ms. Lofgren.
Those in favor will say aye? Opposed, no?
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Mr. Nadler. rollcall.
Chairman Sensenbrenner. The gentleman from New York asks
for a rollcall. Those in favor of the Nadler-Lofgren amendment
will, as your names are called, answer aye; those opposed, no.
And the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? The gentleman from Ohio, Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 21 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments? The gentleman from Maryland,
Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I have an
amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Van
Hollen and Mr. Conyers. At the end of the bill, add the
following: Section ___. Knowing transfer of firearm to
individual named in the Violent Gang and Terrorist Organization
File treated as providing material support to terrorists.
Mr. Van Hollen. Mr. Chairman, I ask unanimous consent that
further reading of the amendment be dispensed with.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Mr. Van Hollen and Mr. Conyers follows:]
Chairman Sensenbrenner. The gentleman from Maryland is
recognized for 5 minutes.
Mr. Van Hollen. Thank you, Mr. Chairman. I am pleased to
offer this amendment together with Mr. Conyers.
There is an existing provision in the PATRIOT Act entitled
``Providing Material Support to Terrorists,'' which does
something I think we all agree needs to be done, which says
simply that if you are somebody who is providing aid and
comfort and providing material support to somebody conducting a
terrorist act, then you, too, should be held accountable.
What this amendment does, very simply, it says that if you
knowingly--and I want to stress this is not if you have reason
to know, this is not if you speculate, that you might know--
this is if you know that somebody is on the terrorist watch
list and you provide that individual with firearms, like a
semiautomatic weapon or other controlled weapons, that you can
be held responsible for that action. And it seems to me that if
we want to address the roots of the problem as we have in the
existing bill, where we say that someone who provides material
support to a terrorist will also be held accountable and
responsible, it makes sense that if we know that somebody is on
the terrorist watch list and you go out and sell them, you
know, 12 AK47s, that you also should be held responsible under
this provision providing material support to terrorists.
So I urge my colleagues on both sides of the aisle to adopt
this amendment, and I yield to Mr. Conyers.
Mr. Conyers. I thank my colleague for joining with me, and
me joining with him, in this amendment. Terrorists' access to
guns. What could be more relevant in a PATRIOT Act
reauthorization? We are not talking about weapons of mass
destruction, we are talking about guns, period, in the hands of
any terrorist is a danger to Americans, particularly inside the
United States.
And so what we are trying to do with Van Hollen-Conyers is
to close an alarming loophole that allows suspected and actual
members of terrorist organizations to legally purchase guns. I
will not repeat that sentence because it speaks for itself.
A GAO report: 56 firearm purchase attempts were made by
individuals designated as known or suspected terrorists by the
Federal Government. Forty-seven of these cases, transactions of
sale were permitted to proceed because officials couldn't find
any disqualifying information such as a felony conviction or
court-determined mental defectiveness in the individual
applicant's background.
So under the law as it stands without this amendment, even
in the PATRIOT Act neither suspected or actual membership in a
terrorist organization is a sufficient ground in and of itself
to prevent such a purchase from taking place. I think this
Committee is not about to let a PATRIOT Act reauthorization
come out knowing that this is the case and that we must act.
I deliberately did not mention assault weapons because they
are going to come up in a special amendment. So, my colleagues,
please join us so that we can really wage the best war that we
can against terrorists in the United States by keeping domestic
guns out of their hands for those who know who they are selling
them to. Again, as the gentleman from Maryland indicated, this
turns on knowledge and intent, and I think that it is the least
that we can do on a bill such as this.
I return the time back to my colleague, if he chooses to
use it.
Mr. Van Hollen. Well, I thank my colleague. I think the
point has been made here. And I do want to stress that this is
where you are knowingly transferring, where an individual
knowingly transfers firearms to somebody who is on the
terrorist watch list. It seems to fit very well into the
provision that already exists with respect to providing
material support to terrorists. And I urge my colleagues to
adopt the amendment.
Mr. King. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
Mr. King. Mr. Chairman, I wish to be recognized to speak in
opposition.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. And although I agree
with the sentiment in this amendment, and all of us want to
take all weapons out of the hands of terrorists, I would seek
to answer the question that was asked by the Ranking Member
from Michigan, Mr. Conyers, although it may have been
rhetorical, what could be more relevant than taking guns out of
the hands of terrorists; I would submit taking bombs out of the
hands of terrorists would be more relevant, given the
circumstances that we have seen in the history of terrorism.
But it is not my particular concern. I would like to find a
way, too, that we could verify that the terrorists are on the
watch list for a reason. But in fact, we can't know if they are
on the list or not because it is a classified list. And so I
understand the amendment says ``knowingly'' the name appears on
the file. I don't know how an individual that might be
providing that gun would know that they were on the list, since
it is classified.
And then the second point is that there is a list, though,
and that list is the list of those who are disabled of their
firearms rights. And it is a list that has been determined to
be consistent with the Second Amendment of our Constitution.
And those conditions are, people who have been adjudicated in
one form or another for having a legitimate reason to have
their Second Amendment gun rights denied, these would be people
who have committed a felony, people who are a fugitive from
justice, addicted to a controlled substance, or adjudicated
mentally defective or an illegal alien, or dishonorably
discharged from the military, or having renounced their U.S.
citizenship or be subject to a restraining order, or being
convicted of a crime of domestic violence. We make sure that
when people are denied their constitutional rights to keep and
own firearms that they have a process by which they go on the
list where they are denied, they have an opportunity to appeal
that, an opportunity for their case to be heard. And in this
case, not only do they not have an opportunity to be on the
terrorist watch list, they may not know that they are on the
watch list. And if they might hear a rumor that they are, for
example, be denied boarding an airplane, which has happened to
some of our colleagues, then they only suspect that they are
on; it might confirm they are on, but they may not know why.
So I think that even though the intent of this amendment is
a good one, to take the weapons out of the hands of terrorists,
it reaches beyond a point where we have constitutionally ever
reached before with regard to their restraint on access to guns
under the Second Amendment. So the language and the intent is
good, but the effect on our Second Amendment of the
Constitution, I believe, is----
Mr. Conyers. Would the gentleman from Iowa yield to me
briefly?
Mr. King. I would be happy to, Mr. Conyers.
Mr. Conyers. Thank you very much.
What I have heard you say is that terrorists have a
constitutional right to weapons, a protected constitutional
right----
Mr. King. Reclaiming my time.
Mr. Conyers. Right?
Mr. King. Of course not. And in fact these people are not
adjudicated as terrorists. You said yourself that they were
known or suspected to be on the terrorist watch list, those 56
people that applied. I don't think that you stated before this
Committee that they were all on the terrorist watch list,
because that would have been at least acknowledging an
understanding of what was on the classified list itself.
So I would conclude by urging a No vote and I would yield
back my time.
Mr. Van Hollen. Would the gentleman yield on that point?
Mr. King. I have yielded back.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Thank you very much.
Mr. Chairman and members, this amendment appears to be the
most reasonable, well thought-out amendment going directly to
the heart of protecting us from terrorists or people who would
do us harm. And yet, I am absolutely amazed that the gentleman
on the opposite side of the aisle who just spoke is concerned
about protecting the rights of suspected terrorists.
It seems to me we have sat here and we have listened to
some of the same voices talk about how we can obtain private
medical records, how we could place people under investigation
without judicial review, how we can have access to e-mails, and
surveillance of all kinds, invading the rights of folks who you
don't even have to show probable cause. And here we have an
objection to trying to keep guns out of the hands of suspected
terrorists.
I don't understand it. It doesn't make good sense to me.
And for those who would paint themselves as being concerned
about how we secure this country, how we secure the homeland,
how we really deal with this problem of terrorism, given that
there is some information that would lead a reasonable person
to believe that this person could be a terrorist, and you don't
want to keep firearms out of their hands, I don't understand
it. And we certainly must have a recorded vote on this. And I
yield----
Mr. Conyers. Would the gentlelady yield?
Ms. Waters. I yield to the gentleman from New York.
Mr. Weiner. Thank you. What I found interesting in the
opposition from one of the members on the other side is that
the objective was right and the language was right, but there
was some concern about his interpretation of, perhaps, that
this would be problematic to the Second Amendment.
I just want to reiterate that the Van Hollen-Conyers
amendment says that the person would only be in trouble under
this section if they knowingly sold to someone who appeared on
the list. So it is not as if he gets to guess or they have to
do intelligence. They just have to know. I mean, if the intent
was fine of the bill, well, that is at least a step in the
right direction. If the language was acknowledged to being
right, then the only problem is that the reading of it must be
faulty.
Mr. King. Would the gentleman yield?
Ms. Weiner. I don't control the time, but I certainly hope
that the gentlelady will because I am dying to know what is it
that you think is not good about it if you like the intent and
the language? And I will yield back.
Ms. Waters. I yield to the gentleman from Michigan.
Mr. King. I thank the gentle----
Mr. Conyers. I just want to----
Chairman Sensenbrenner. She didn't yield to you.
Mr. Conyers. I just want to point out what is left for us
to do in this bill reauthorizing a PATRIOT Act and allowing
people to knowingly sell to terrorists or suspected terrorists.
Then that makes everything else we do secondary. We just opened
the barn door. I can't figure out why we should stay around
here for another day or so and mull over dozens of other very
worthwhile amendments when we have already agreed that the
constitutional rights of terrorists are protected by the Second
Amendment to the Constitution--a proposition I have never heard
in all of my years on the Judiciary Committee.
Ms. Waters. Reclaiming my time, I am going to yield because
I am so anxious to get to the vote on this. I think it is very
important that we have a recorded vote. I yield back the
balance of my time.
Mr. Lungren. Mr. Chairman?
Chairman Sensenbrenner. The question----
Mr. Lungren. Mr. Chairman? Over here.
Chairman Sensenbrenner. The gentleman from California did
not hear the gentlewoman from California's request to go to a
vote quickly?
Mr. Lungren. Yes, I did, but there are some remarks on the
record that I----
Chairman Sensenbrenner. Well, then, the gentleman is
recognized for 5 minutes.
Mr. Lungren. Strike the last word in opposition to the
amendment.
I mean, we know this is serious business. When I was
attorney general, I set up a violence suppression unit that did
nothing but go and take guns off the street from those who were
convicted felons, those who were violent offenders. We took
literally thousands off the street. We put people away for long
periods of time. We had to deal with the gang issue. And one of
the constitutional issues that comes up with lists of gangs is
who has access to those lists, because on your gang list you
often have people who are affiliated with gangs but don't have
a criminal history. You can't mix them into criminal history
records precisely because they are different categories. Some
law enforcement have access to them, others do not.
It is my understanding--and someone can correct if I am
wrong--it is my understanding that the Violent Gang and
Terrorist Organization File maintained by the Attorney General
is classified. Now, if that is the case, what we are doing here
is trying to fool people with an amendment that seems to do
something. If it is a classified list, how can anybody who
doesn't have a classified clearance be able to see it?
And so what we are talking about here is a feel-good
amendment that doesn't go to the question of dealing with
terrorists or gang members. And I know it makes people feel
good to talk about some sort of list that answers the
questions, but having gone through this in one of my past lives
and knowing that you have different categories of information
on different lists, access to which is granted to only certain
people under certain standards----
Ms. Waters. Would the gentleman yield?
Mr. Lungren. Yes, I would be happy to yield.
Ms. Waters. Two questions I see. First, I don't believe it
is classified. But if we assume that it is, the amendment
itself would apply only if the individual knew that the person
was on that list. So----
Mr. Lungren. And there be no reason of knowing unless they
had a classified----
Ms. Waters. That is not true. If they knew, if they knew
and sold it anyhow, that is the only time this would apply. So
the gentleman's objection, even though I don't think it is
classified, would not actually cause a problem.
And I thank the gentleman for yielding.
Mr. Lungren. Well, the other thing is, if this list is what
I think it is, at certain moments in time you have people who
are not members of a terrorist group or members of a gang, but
have been put on there because of a suspicion that they may be.
And that is one of the reasons that you don't allow access to
some of these lists. I am just talking about from the
standpoint of lists I know with respect to gang----
Mr. Weiner. Would the gentleman yield on that point?
Mr. Lungren. You have to be very careful about designating
people as gang individuals and putting that out somewhere. And
there have been carefully drawn limitations on who gets access
to it and who doesn't.
Mr. Weiner. Would the gentleman yield?
Mr. Lungren. I mean, this is an interesting discussion,
but----
Mr. Weiner. Would the gentleman yield on that point?
Mr. Lungren. Yes, sure.
Mr. Weiner. I am just curious. If the United States
Government and the agencies in charge of making sure that
people who are terrorists don't get onto planes, don't get
access to secure places, if a person is on that list, isn't
that--and someone knows they are on that list and sells them a
weapon anyway, isn't that kind of a kind of precaution we might
want to maybe possibly have? What is the harm? What is the harm
that you see in saying that if someone knowing knows they are
on that list, a list, by the way, that we rely upon for much
tougher sanctions than this bill, what is the harm of saying if
someone knowingly sells to someone----
Mr. Lungren. Well, I will take back my time, because what
we are doing here is silly. Because you know the people don't
have that information. This is the reason why we decide that we
don't give airlines the list. We give them--they are allowed to
make queries into the list to find out if people are there.
They don't know why people are on or not on. It is one of the
reasons we try and make a delineation between law enforcement
people who have had an opportunity to be cleared to know this
information, and others.
So if you want to, you know, vote for the bill, or vote----
Ms. Waters. Will the gentleman yield?
Mr. Lungren.--means something, you can. But the fact of the
matter is it means absolutely nothing.
Ms. Waters. What if Karl Rove leaked the information?
Mr. King. Will the gentleman yield?
Mr. Lungren. I will yield whatever time I have.
Mr. King. I thank the gentleman from California. And I
would point out there is a distinction here, and that is the
list that I read, the nine classifications of those who have
been disabled of their constitutional rights, all the people
who have been adjudicated, the list we are talking about in
this amendment, though well-intentioned, is a list that
includes those people who are under suspicion, not those who
are adjudicated. And that is a real violation of the same kind
of things that you are trying to avoid in many of your other
amendments.
And I would yield back. Thank you.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from North Carolina, Mr. Watt, seek recognition?
Mr. Watt. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I had to step out and I walked back
in to what appears to me to be a surreal discussion. I want to
address one aspect of it. I mean, I thought that one of the
real problems we had with the PATRIOT Act across the board was
the extent to which it treads on constitutional rights. And Mr.
King's argument about the Second Amendment is the one that I
just couldn't quite come to grips with. He seemed to be
suggesting that he couldn't support this amendment because it
would tread on the Second Amendment to the Constitution of the
United States.
I did want to remind him of the provisions in the Sixth
Amendment to the Constitution of the United States, which
provides that accused shall enjoy the right to a speedy and
public trial by an impartial jury of the State and district in
which the crime shall have been committed, which district shall
have been previously ascertained by law; and be informed of the
nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel
for his defense.
If the marginal--even if you assume that the Second
Amendment says what you believe that it says, I can't imagine
that you think that what we have done is more an impediment on
the Second Amendment than it is on this amendment. I mean, we
have people locked up, no charges brought against them, no
right to counsel, no--I mean, you know. So I thought we all had
accepted that there was going to be some infringement. That is
why we had such a long debate about the sunset provisions,
because, you know, at least you could go back and review the
extent to which this is happening and get us back at some point
to a balance that protects our constitutional rights. But you
can't with integrity argue that you can protect only the Second
Amendment, unless you are going to argue just as vigorously and
vehemently that you are going to protect the other
constitutional protections here.
So, I mean, I--now, I don't have any problem with you
standing up for the Second Amendment. I mean, you know, I just
want you to make it a little bit broader than the Second
Amendment.
Mr. Schiff. Will the gentleman yield?
Mr. Watt. There is a whole bunch of provisions in the
Constitution that we are treading and shredding--hopefully,
temporarily. I just wanted to point that out. I will yield to
the gentleman from California.
Mr. Schiff. I thank the gentleman for yielding. I just
wanted to make a quick related point, and that is that a lot of
the provisions of the Patriot bill that we are discussing today
involve the Fourth Amendment right to be free from unreasonable
searches and seizures. And in all the cases that we are talking
about, about surveillance under FISA or other provisions, we
are talking about people who are suspects. None of these people
are adjudicated felons. We are all talking about suspects, and
in some cases, with standards less than probable cause.
Now, here, yes, we are talking about people who are
suspects, although I guess you could have people who are
convicted also that are part of the Violent Gang and Terrorist
Organization File. But yes, we are talking about suspects and
their rights under the Fourth Amendment and suspects and their
rights under the Second Amendment. And I find it, you know,
very incongruous that we are saying that the Fourth Amendment
rights we are willing to----
Mr. Watt. Fudge.
Mr. Schiff. Well, I wouldn't use the word ``fudge,'' but,
you know, we are willing to push the envelope on the Fourth
Amendment vis-a-vis these suspect, but when it comes to the
sacrosanct Second Amendment, and we are talking about knowingly
giving a firearm to somebody who is a potential terrorist, that
that is okay because they are only potentially terrorists. But
we can surveill potential terrorists; we just can't take their
gun away.
That seems to me an extraordinary result, that we can go up
on a wiretap of a potential terrorist, but we can't stop
someone from knowingly giving guns to a potential terrorist.
And I don't know why the Fourth Amendment, apart from reasons
that are unspoken here in Committee but plain to everyone in
this Committee, I don't know why the Second Amendment is
getting so much more vigilant protection here than the Fourth
or, as my colleague mentions, the Sixth.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the Van Hollen amendment. Those in favor
will say aye? Opposed, no?
The noes appear to have it.
Mr. Conyers. Record vote, sir.
Chairman Sensenbrenner. A record vote will be ordered.
Those in favor of the Van Hollen amendment will, as your names
are called, answer aye; those opposed, no. And the clerk will
call the role.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? The gentleman from California, Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no.
Chairman Sensenbrenner. If there are no further members who
wish to cast or change their vote, the clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 22 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments? The gentleman from
California, Mr. Berman.
Mr. Berman. Mr. Chairman, I have an amendment at the desk,
Berman and Delahunt, on data mining report.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Berman
and Mr. Delahunt. At the appropriate place in the bill, insert
the following: Section ___. Data mining report. (a)
Definitions. In this section----
[The amendment of Mr. Berman and Mr. Delahunt follows:]
Mr. Berman. Mr. Chairman, I ask unanimous consent the
amendment be considered as read.
Chairman Sensenbrenner. The gentleman from Texas reserves a
point of order. Without objection, the amendment is considered
as read. Subject to the reservation, the gentleman from
California is recognized for 5 minutes.
Mr. Berman. Thank you very much, Mr. Chairman.
This amendment that Mr. Delahunt and I are offering would
require the departments and agencies of the Federal Government
to report to Congress on the development and implementation of
data mining technologies.
When Mr. Delahunt offered this amendment on behalf of both
of us during the intelligence reform markup of this Committee,
it was accepted by a voice vote. The General Accounting Office
issued a report in May 2004 that identified almost 200 data
mining projects throughout the Federal Government that were
either operational or in the planning stages. Many of them make
use of personally identifiable data obtained by private sector
databases.
Two concerns lead us to this amendment. The first is that
Americans rightly have privacy concerns about these data mining
technologies, particularly when we hear that there are 200 of
them in the works. When the Total Information Awareness Program
came to light, there was tremendous public concern about the
extent of the project.
Congress ought to know about these programs not just as
they are being put into place, but as they are being developed,
so that we can ensure that privacy concerns are taken into
account.
The second reason for the amendment is that the budget for
the Total Information Awareness Program in the Defense budget
alone in 2004 was $169 million. The Defense appropriations bill
cut all of that funding. These technologies are not free. They
are expensive to develop and run. When Congress is unaware of
their development and steps in only at the implementation to
cut funding, taxpayer dollars are wasted.
Law enforcement must have the necessary means to protect
our safety, but the use of data mining technologies should not
be allowed to put Americans' privacy at risk. By implementing a
reporting requirement, we can ensure that Congress knows in
advance of implementation and is able to respond appropriately.
I know that there is a question about the germaneness of
this amendment, and I know that when it was adopted last time,
there were problems in sequential referrals because we seek to
get reports on data mining in a number of different agencies,
not just agencies that the Judiciary Committee has oversight
on. At the appropriate time----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Berman. I would be happy to yield.
Chairman Sensenbrenner. The gentleman from California and
other members of the Committee know that the chair has been
very concerned about data mining in an unchecked and
unreportable manner by agencies of the Executive Department.
Now, when the original PATRIOT Act was first considered, the
final version of the PATRIOT Act did have provisions checking
data mining activity by the Justice Department.
I believe that the concern of the gentleman from California
is a very well-founded one. And while I don't think that the
amendment he is offering is germane under the rules of the
House, I do think that he is talking about a legitimate subject
that should be legislated on sometime further on in the
legislative process, either in this bill or in subsequent
legislation. And I will give my commitment to the gentleman
from California to work with him on this subject, because I
believe that he has spotted something that does need to be
addressed.
Mr. Berman. Thank you very much. Reclaiming my time, I
thank the Chairman very much both for his comments and for his
commitment. And before I withdraw the amendment, I would like
to yield to my cosponsor, Mr. Delahunt.
Mr. Delahunt. I won't take any time. I just appreciate the
offer by the chair. I think this is an issue, however, that has
really raised concerns on a broad swath among the American
people in terms of privacy interests and something that really
compels us to address. And I am hopeful that before the
legislation we are considering today comes to the floor, that
we will be able to work out, in an appropriate fashion,
language so that it could be incorporated in that legislation.
With that, I yield back.
Mr. Berman. I yield back.
Chairman Sensenbrenner. Does the gentleman withdraw his
amendment?
Mr. Berman. I do.
Chairman Sensenbrenner. The amendment is withdrawn. The
point of order is thus moot.
For what purpose does the gentleman from California, Mr.
Schiff, seek recognition?
Mr. Schiff. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Nine, offered by Mr. Schiff and Ms. Waters. Add
at the end of Section 8, page 9, after line 11, the following
new Subsection E: Prohibition on delegation of application for
order of production of records from library or bookstore or
medical records containing personally identifiable information.
Subsection A of such Section is amended----
Mr. Schiff. Mr. Chairman, I'd ask consent that the
amendment be deemed as read.
Chairman Sensenbrenner. Without objection, and the
gentleman is recognized for 5 minutes.
[The amendment of Mr. Schiff and Ms. Waters follows:]
Mr. Schiff. Thank you, Mr. Chairman. I'll try to do this in
less than five.
This is a very simple amendment to Section 215 that says
that vis a vis the records that have the most concerns among
all of our constituents--library records, or bookstore records,
or medical records--that the existing authority in Section 215,
which allows the Director of the FBI to delegate to a
subordinate the decision to seek these records he would not be
able to delegate. That is that in the limited case of
libraries, bookstores, and medical records that you could still
get them under Section 215, but they'd have to be approved by
the Director of the FBI himself or herself.
I imagine, listening to my colleagues on the other side of
the aisle that--and in particular as far as the Attorney
General has certified--the library provision has never been
used, at least as of the last public disclosure. So it would be
very seldom that I would hope that a library or bookstore or
medical record would be sought, and I don't think this would
impose an undue burden on the Director of the FBI, and given
the sensitivity of this, I think it makes sense for the FBI
Director and the Director alone to make that decision, not
delegate it away.
The fact that the library record provision may or may not
have been used at this point doesn't alter the fact that it
affects the behavior of all of our constituents, who are
concerned that their records might be the subject of search. So
I think this added protection is warranted. It won't inhibit
what the FBI does, but it will add another layer of safeguard,
and I would urge my colleagues' support.
Ms. Lofgren. Would the gentleman yield?
Mr. Schiff. Yes. I'd be happy to.
Ms. Lofgren. I will support the gentleman's amendment, but
I would note, and I guess this is really a question that this
is actually a more conservative approach than the House itself
took in the amendment to the appropriations that essentially
prevailed--Mr. Sanders' amendments several weeks ago. Isn't
that correct?
Mr. Schiff. Yes, it is. I mean this doesn't exclude the
ability to get these records, but it says in this narrow
category of the most sensitive information, it's a decision
that the Director of the FBI should not be able to delegate to
a field agent or a subordinate, but should be made at the top.
Ms. Lofgren. If the gentleman will further yield. I will
support the amendment. I actually prefer what the House voted
on, and I suspect the gentleman may as well. But certainly,
what you've recommended is an improvement over the laws that
exist today, and I thank the gentleman for yielding.
Mr. Schiff. I thank the gentlewoman, and I'd be prepared to
yield back the balance of my time.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment.
The Chair realizes that there have been problems so with
the interpretation of Section 215 and that a clarification of
procedures and standards are in order.
The Flake Amendment that was adopted this morning does
provide a partial clarification. The actual line of authority
issue that the gentleman from California Mr. Schiff's amendment
deals with is at the present time being worked out, and will be
the subject of a floor amendment when we get there next week.
I would be willing to offer to work with the gentleman from
California, Mr. Schiff, and the gentlewoman from California,
Ms. Waters, to work out language should they withdraw their
amendment at this time.
But if they won't withdraw the amendment at this time, then
I would urge the members to vote against it.
I yield back the balance of my time.
Mr. Schiff. Yeah. Mr. Chairman, I appreciate the offer to
work together, and I would, given the likelihood of success in
Committee, accept the Chairman's invitation to work together on
language for the floor.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there----
Mr. Schiff. Mr. Chairman, since I have withdrawn that, may
I offer another?
Chairman Sensenbrenner. Of course. The clerk will report
the amendment.
Does the gentleman from----
Mr. Schiff. It's being provided to the desk, Mr. Chairman.
Chairman Sensenbrenner. Does the clerk have a Schiff
Amendment?
Mr. Schiff. My staff is bringing it to the desk right now,
Mr. Chairman.
Chairman Sensenbrenner. Perhaps--the Chair will recognize
another member for offering an amendment and get back to Mr.
Schiff. The gentleman from New York. Excuse me, the gentleman
from Florida, Mr. Wexler, has had little to say today. For what
purpose do you seek recognition?
Mr. Wexler. It's a compliment for me to be from New York,
Mr. Chairman. Others may not feel that way, but I do.
Chairman Sensenbrenner. Does the gentleman from Florida
have an amendment at the desk?
Mr. Wexler. Yes, I do.
Chairman Sensenbrenner. The clerk will report the Wexler
Amendment.
The Clerk. Mr. Chairman, I do not have a Wexler Amendment.
Chairman Sensenbrenner. Okay. I will now try the gentleman
from New York, Mr. Weiner.
Do you have an amendment at the desk?
Mr. Weiner. Thank you, Mr. Chairman. Mr. Chairman, no.
Chairman Sensenbrenner. The clerk will report the Wexler
Amendment.
Mr. Wexler. Thank you, Mr. Chairman.
The Clerk. Amendment to H.R. 3199, offered by Mr. Wexler of
Florida. At the end of the bill add the following section
preventing the revelation of information pertaining to active
intelligence agents.
Mr. Wexler. Mr. Chairman, I move that the----
The Clerk. Section 2239----
Chairman Sensenbrenner. Reserve the point of order.
The Clerk. A of Title 18 United States Code is amended by
inserting reveals any information pertaining to the identity of
undercover intelligence officers, agents, informants, and
sources that the person has or should----
Mr. Wexler. Mr. Chairman, I move the amendment be
considered as read.
Mr. Smith. Mr. Chair, I reserve a point of order.
Chairman Sensenbrenner. The gentleman from Texas reserves a
point of order, subject to the reservation. Without the
objection, the amendment is considered as read, and the
gentleman from Florida will be recognized for 5 minutes.
[The amendment of Mr. Wexler follows:]
Mr. Wexler. Thank you, Mr. Chairman. This amendment would
expand Section 805 of the bill, which is the section which
defines material support for terrorism to include acts that
assist terrorist groups by undermining the safety of our
intelligence agents by leaking information leading to the
disclosure of their identities.
While it already a crime to knowingly disclose classified
information that identifies a covert agent under Title 50,
Section 421, of the U.S. Code, this amendment would strengthen
existing protections by categorizing veiled or leading comments
that identify undercover intelligence officers or agents as
providing material support for terrorism, especially at this
critical juncture when the Federal Government is calling on
patriotic Americans to fight our War on Terrorism by serving in
dangerous intelligence gathering positions.
We must treat the secrecy of covert agents with the
greatest possible care. After the outrageous outing of Valerie
Plame as a CIA operative, it is time for Congress to send an
unequivocal message to our intelligence community that we are
prepared to do our part to protect them, as they risk their
lives to protect our nation from terrorism.
Flagrant disregard for the safety of our intelligence
officials and their contacts is a shameful betrayal of our
intelligence community and greatly diminishes America's counter
terrorism efforts.
If brave and patriotic CIA and other intelligence
operatives, whose unknown and unsung service is so crucial to
the safety of our nation, are to effectively, objectively, and
independently gather and analyze intelligence, they must trust
absolutely that their identities are safe from both knowing
admissions and from leading comments.
If we learned anything, just one thing from the catastrophe
of September 11th, it is when our intelligence officials fail,
every American becomes vulnerable to attack. CIA and other
intelligence officials must not fear political retribution,
whatever their conclusions or opinions are. They must not be
pressured to abridge their conclusions and certainly the
secrecy of their identities must be held sacred.
Those Americans, no matter how prominent or powerful they
may be, who compromise the identity of our intelligence
operatives, are doing nothing short of providing material
support for terrorism. They undermine the security of the
United States and should be subject to prosecution under the
Patriot Act.
It is critical that we include extra protection for
America's covert agents provided for in this amendment.
Surely, every member of this Committee condemns the outing
of Ms. Plame, and I urge you to support the greater security
for our intelligence operatives that they deserve, which is
contained in this amendment.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman from Texas
insist upon his point of order?
Mr. Smith. Mr. Chairman, it is my understanding that the
amendment has been redrafted and is now marginally germane, so
I will withdraw my point of order.
Chairman Sensenbrenner. Okay. The gentleman from Iowa, Mr.
King.
Mr. King. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. I thank the Chairman and, you know, I listen with
amazement to this amendment as it's being described by the
gentleman from Florida, and I think I read about four words
into this amendment before I identified this as the Carl Rove
Amendment. And, you know, I'm wondering why it's not the Sandy
Berger Amendment. I mean he really did have paper in his socks,
and there really was something substantive there, but I didn't
see any action on your part during that entire minimal and
quiet investigation that took place.
And this is a serious business that we're ahead here
marking up the PATRIOT Act, and there are a lot of amendments
to be dealt with today, but this doesn't belong in this bill.
It's already a crime to divulge this information. And it
isn't material support. It's a different definition. Material
support is very clear and to expand it in this fashion, and
then add, add the language that the person has or should have
reason to believe would be sufficient to be used to identify a
United States intelligence operative or should have reason to
believe is about as ambiguous as anything I've ever read and
anything that's come before this Committee. Who's going to make
the judgment on what they should have had reason to believe?
Can we make that today or can we do that after the fact?
So this redefines material support as something that's not
material support. It's already a crime. There's already a way
to deal with this, and that will be dealt with in due course in
a proper fashion, and it should not be dealt with in the
political field here while we're marking up a very important
serious bill that's going to be protecting the safety of all
the people in this nation for the next generation to come.
So I'd urge a no vote on the Wexler Amendment, and I'd
yield back the balance of my time.
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Berman, seek recognition?
Okay. The gentleman from New York, Mr. Weiner?
Mr. Weiner. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Weiner. First of all, let the record indicate that now
the consensus in the nation is complete regarding Carl Rove,
and it even includes the majority members of the Judiciary
Committee. And with that, I yield to my colleague from Florida,
Mr. Wexler.
Mr. Wexler. Thank you. I specifically didn't mention any
names. But since the gentleman from Iowa did----
Mr. King. Would the gentleman yield?
Mr. Wexler. No, no, no.
Mr. King. Valerie Plame would be a name.
Mr. Wexler. I'm sorry?
Mr. King. Would the gentleman yield.
Mr. Wexler. Sure.
Mr. King. Valerie Plame would be a name that you mentioned
in your remarks----
Mr. Wexler. That's true.
Chairman Sensenbrenner. The time belongs to the gentleman
from New York.
Mr. Wexler. Yes, I did. I didn't mention any names in terms
of people in the context of alleged violation of law. But since
the gentleman from Iowa did, I think it's appropriate to
respond in the context of Mr. Rove.
The present standard used to protect the identity of
undercover agents actually criminalizes the knowing disclosure
of classified information that identifies that covert agent, as
the gentleman from Iowa so correctly pointed out.
It's clear, however, that Mr. Rove knew about the
prohibition and carefully designed his comments to be revealing
enough to lead a reporter to undercover Ms. Plame's identity
without revealing Ms. Plame's actual name or affiliation
outright. The effect, however, on the safety, security, and the
ability of our undercover agents to do their job is exactly the
same.
Whether his unquestionably egregious actions qualify as a
violation of current law is obviously still under review. I'm
not offering an opinion.
But what I do know is that our covert agents deserve the
greatest possible degree of protection, not something that
could possibly be circumvented with if I only say it this way,
I'll avoid the law, but the effect will be the same: an
undercover CIA agent, her or his identity, will be disclosed to
the entire world, thereby, jeopardizing our intelligence
operation.
The amendment would simply provide a broader standard of
protection for the identity of undercover agents by amending
Section 805 of the PATRIOT Act to include any information
pertaining to the identity of an undercover intelligence
officer. That's the least we should do to make certain that our
CIA and intelligence officers have their identities protected.
This is bigger than Mr. Rove. It's bigger than any
individual----
Mr. Berman. Would the gentleman yield?
Mr. Wexler. I yield to the gentleman from California?
Mr. Berman. I thank the gentleman for yielding. Before the
gentleman from Iowa gets too distraught about an amendment that
proposes as a criminal standard has or should have reason to
believe, I'm wondering if he had any information about how many
of our criminal statues that can impose imprisonment or fines
have that standard already in the law, because I haven't
noticed any particular concern about narrowing the breadth of
that phrase in the existing statutes.
Mr. King. Would the gentleman yield?
Mr. Conyers. Would the gentleman yield?
Chairman Sensenbrenner. Time belongs to the gentleman from
New York.
Mr. Weiner. I yield to the gentleman from Michigan.
Mr. Conyers. I thank the gentleman for yielding. The Wexler
Amendment, members of the Committee, simply extends the Section
805 to cover the specific case where, by using veiled
references, you end up naming the person without putting the
spelling of the name and the name of the organization.
And for that reason, it's a very important extension
because this could be used again and again and again by people
who want to avoid what the law presently provides to get around
it. So I think this is a very useful and important amendment. I
thank the gentleman.
Mr. Weiner. And just reclaiming my time, you know, so far,
we've heard the opponents to amendments that would seek to ban
guns being sold to terrorists as silly. Something that seeks to
make the laws tougher on leaking the names of covert operatives
that could get them killed, it's being called political.
Perhaps one of these amendments will be considered on its
merits one of these days; that you'll say I don't believe that
we should conceal the identity of covert operatives. I don't
believe that we should prevent guns from coming into the hands
of terrorists.
Let's have--this is an opportunity for us here to discuss
the merits of some of these things, and I would encourage my
colleagues to take the opportunity to do it.
You know, a pedantic it's silly or it's political does not
do anything to diminish the merit of it, and I urge a yes vote
on the Wexler Amendment.
Chairman Sensenbrenner. The gentleman's time has expired,
and the Chairman is to strike the last word and recognizes
himself for 5 minutes.
It's no secret that there has been a special prosecutor
that has been appointed by the Attorney General to look into
the entire issue.
That special prosecutor is well known as a bulldog in the
prosecutorial community and let's the chips fall where they
may. I believe in his role as U.S. Attorney for the Northern
District of Illinois, he indicted the former Republican
governor of that state.
I don't think any of us can say whether the law on
disclosing the names of covert CIA agents is adequate or
inadequate until that special prosecutor issues his report, and
either indicts people or decides that there is insufficient
evidence to indict people.
This is a serious issue, but until Mr. Fitzgerald completes
this investigation, I honestly think that we really do not know
how useful or not useful the current law is in tracking down
those that disclose the names of covert CIA agents.
I think my Ranking Member and I and perhaps Mr. Lungren,
who were here at the time in the early '80's, remember that we
dealt with this issue in terms of drafting the current criminal
statute, extensively. And while that statute has never really
come into play before now, I think it is into play now. I would
also point out that even though the name of Carl Rove has been
mentioned, this law would have no--or this proposed amendment
would have no application to any case that may or may not
involved Mr. Rove, because if this was enacted today, it would
be an ex post facto law and the circumstances relative to the
leaking of Ms. Plame's name to reporters for the news media
could not be prosecuted under the law that is proposed by the
Wexler Amendment.
For all these reasons, I would urge the defeat of this
amendment.
Ms. Wasserman Schultz. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Florida, Ms.
Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. I move to
strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. Although
the Chairman just said that he's not sure where we should be
going on this, and that it's something that we should probably
be looking at, I wanted to cite for you the remarks of George
Herbert Walker Bush, the 41st President of the United States.
In his speech at the dedication ceremony for the George Bush
Center for Intelligence on April 26th of 1999, he said these
are our enemies. ``To combat them, we need more intelligence,
not less. We need more human intelligence. That means we need
more protection for the methods we use to gather intelligence
and more protection for our sources, particularly our human
sources, people that are risking their lives for their country.
``Even though I'm a tranquil guy now at this stage of my
life, I have nothing but contempt and anger for those who
betray the trust by exposing the name of our sources. They are,
in my view, the most insidious of traitors.''
It is pretty clear that we need more protection and not
less in the law, and of all places to insert that protection, I
would think it would be appropriate to insert it in the PATRIOT
Act. And the gentleman from Iowa earlier stated that he could
not--that he has not seen less more vague language than the
language in the gentleman from Florida's amendment. One has
only to peruse the vast majority of the PATRIOT Act to look and
find vague language when it comes to the protections that are
afforded to people who deserve quite a bit more certainty and
clarity in the law than the PATRIOT Act affords them.
Mr. King. Would the gentlelady yield?
Ms. Wasserman Schultz. Yes.
Mr. King. I thank the gentlelady, and I--the reason that I
said I haven't seen language this ambiguous is because of the
phrase or should have reason to believe. And I didn't believe
when I said that, that that language existed anywhere in the
U.S. Code and since that time we've confirmed that that
language doesn't exist anywhere in the U.S. Code, so I think
that would be a solid statement that this is very ambiguous,
and I thank and I yield back.
Mr. Berman. Would the gentlelady yield?
Ms. Wasserman Schultz. Yes.
Mr. Berman. Has the gentleman looked at the Foreign Corrupt
Practices Act in making this decision, the conclusion about the
U.S. criminal statutes?
Mr. King. We had staff search the entire code.
Ms. Wasserman Schultz. Mr. Chairman, I've reclaimed my
time.
Mr. King. I can't answer specifically.
Mr. Berman. If I--may I just?
Ms. Wasserman Schultz. Yes. I'll yield to the gentleman
from California.
Mr. Berman. It is my belief, based on working on this
statute in the days when only Mr. Sensenbrenner and Mr. Hyde
and Mr. Lundgren and Mr. Conyers would remember that one of the
clear standards or vague standards in the Foreign Corrupt
Practices Act is that when you pass money to your corporate
agents, that if you knew or should have had reason to know that
that--knew or should have reason to know that that money was
going to be used to bribe a foreign government official for
corrupt purposes that is a crime. I'm unclear about what code
you searched?
Mr. Wexler. Would the gentleman yield?
Chairman Sensenbrenner. Time belongs to the gentlewoman
from Florida, Ms. Wasserman Schultz.
Mr. Wexler. Will the gentlelady yield?
Ms. Wasserman Schultz. I yield to the gentleman from
Florida.
Mr. Wexler. How about we make a deal? If Mr. King is right
and the language is not in the U.S. Code, and, therefore, it is
so nebulous, I'll withdraw the amendment. But if it is in the
U.S. Code, then we accept it, because then, clearly, it's not
nebulous, and we've got the criminal law that already exists.
That's fair; right?
Mr. King. If the gentlelady would yield?
Chairman Sensenbrenner. Will the gentlewoman from Florida
yield?
Ms. Wasserman Schultz. I will.
Chairman Sensenbrenner. As the honest broker here, maybe
the gentleman could withdraw his amendment, and we can look
further in the U.S. Code, and he can always reoffer it.
Mr. Wexler. What did I get out of that deal?
Chairman Sensenbrenner. The commitment you can reoffer it.
Mr. Wexler. The Chairman certainly seems quite genuine, so
I would respect his wishes if that's the case.
Chairman Sensenbrenner. The amendment is withdrawn. Are
there further amendments?
Mr. Schiff. Mr. Chairman, I have that amendment at the desk
now.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff, has an amendment at the desk.
The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff.
At the end of the bill add the following new section. Section
Prohibition on Planning Terrorists Attacks on Mass
Transportation. Section 1993 (a)(3) of title 18, United States
Code is amended a) by redesignating paragraphs 6 through 8 as 7
through 9, respectively, and b) by inserting after paragraph 5
the following: 6. Surveils, photographs, videotapes, diagrams
or otherwise collects information with the intent to plan or
assist in planning any of the acts in the preceding paragraphs.
[The amendment of Mr. Schiff follows:]
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff, is recognized for 5 minutes.
Mr. Schiff. Thank you, Mr. Chairman. This amendment is
fairly straightforward. It amends the section of the PATRIOT
bill that was designed to strengthen the criminal laws against
terrorism in Section 801 of the PATRIOT bill. And it provides
that if you were involved in surveilling, photographing,
videotaping, diagraming or otherwise collecting information
about a mass transit system with the intent to plan or assist
in basically committing a terrorist act against that mass
transit system, that ought to be a prohibited offense----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. I think it should be a prohibited
offense, too, and I am happy to accept the amendment.
Mr. Schiff. Thank you, Mr. Chairman. And I would yield back
the balance of my time.
Mr. Nadler. Mr. Chairman, a point of inquiry.
Chairman Sensenbrenner. The rules don't call for a point
of----
Mr. Nadler. I just have a question.
Chairman Sensenbrenner. Okay. Well, if maybe the gentleman
should California should not yield back.
Mr. Schiff. I think I'd be yielding to the gentleman----
Chairman Sensenbrenner. And yield to the gentleman from New
York.
Mr. Nadler. Thank you. I have a question. Under your
amendment, it's an element of the crime that he has to have the
intent to plan or assist. So if someone is simply
photographing, you'd have to prove intent?
Mr. Schiff. Absolutely.
Mr. Nadler. Okay. I think it's a good amendment, and I
thank the gentleman.
Chairman Sensenbrenner. Okay. The question is on agreeing
to the amendment offered by the gentleman from California, Mr.
Schiff. Those in favor will say aye? Opposed, no?
The ayes appear to have it.
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. Does the gentlewoman from
California want a rollcall?
Ms. Lofgren. No, I was just trying to be recognized for an
amendment.
Chairman Sensenbrenner. Well, the ayes appear to have it on
the Schiff Amendment. The ayes have it. And the amendment is
agreed to.
For what purpose the gentlewoman from California, Ms.
Lofgren, seek recognition?
Ms. Lofgren. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Lofgren. Number five.
The Clerk. Amendment to H.R. 3199 offered by Ms. Lofgren of
California. Add the end of the bill, add the following:
Section, Preventing the Transfer of 50-Caliber Sniper Weapons
to Terrorists. Section 2239 (A) of Title 18 United States Code
is amended 1) in Subsection A by inserting 1) transfers 50
caliber sniper weapon to an individual knowing that the
individual is a member of al-Qaeda, or 2) after whoever and 2)
in Subsection----
Ms. Lofgren. I'd ask unanimous consent that the amendment
be considered as read.
Chairman Sensenbrenner. Without objection, so ordered. The
gentlewoman is recognized for 5 minutes.
[The amendment of Ms. Lofgren follows:]
Ms. Lofgren. This is a simple and commonsense amendment
that would punish those who sell dangerous rifles to known
terrorists who are al-Qaeda members. I think the case for the
amendment is clear and immediate. It's not a gun control issue.
It's a national security issue. Fifty caliber anti-armor sniper
rifles are an ideal tool for terrorists. Armored personnel
carriers, rail cars carrying hazardous materials and most
disturbingly civilian aircraft are vulnerable to these types of
rifles.
In fact, even early promotional materials for the 50-
caliber rifle referenced their threat to civilian aircraft. The
promotional materials state that the weapon could target, and I
quote: ``the compressor section of jet engines, making it
capable of destroying multi-million dollar aircraft with a
single hit delivered to a vital area.'' The rifle's brochure
goes on to say that the cost effectiveness of the 50-caliber
cannot be overemphasized when a round of ammunition purchased
for less than $10 can be used to destroy or disable a modern
jet aircraft.
The military also recognizes this threat. A 1995 Rand
report inspired the Air Force to train a special counter sniper
team to respond to the 50-caliber sniper threat to its aircraft
and personnel. Since 9/11, our country has made great efforts
to secure our civilian airplanes and airports. Terrorists will
obviously adapt to our tactics, so it's vital that we think
ahead. It doesn't take a rocket scientist to figure out that if
we make it difficult to get weapons on a plane or into an
airport, terrorists may look to destroy airplanes from longer
distances, and that's what the 50-caliber rifle is designed to
do.
These rifles are accurate at ranges of at least 1,000 yards
and even further in the hands of trained marksman. In essence,
these weapons could give a terrorist the ability to take a shot
at an aircraft from beyond most airport security perimeters.
There is already evidence that terrorists have sought these
weapons. According to the Violence Policy Center, al-Qaeda
bought 25 50-caliber anti-armor sniper rifles in the 1980's.
Although I personally believe that these weapons should be
outlawed altogether, this amendment doesn't do that. It's more
modest.
It simply provides that if you transfer a 50-caliber rifle
to someone who you know is a member of al-Qaeda, that you will
be guilty of providing material support for terrorism. In
truth, this Congress should outlaw the transfer of any type of
weapon to a person who's on the Terrorist Watch List, as Mr.
Van Hollen suggest earlier. But today, at the least, let's
outlaw the transfer of armor piercing, long-range sniper rifles
to known al-Qaeda members. I don't see how anyone on this
Committee could oppose that goal.
Preventing terrorism on our shores does not only mean
securing our borders, it means preventing terrorists from
obtaining the weapons they need to carry out their destructive
acts.
This modest amendment will help to do that, and I urge my
colleagues to support it. I would note that the discussion of--
that we had under Mr. Van Hollen's amendment is avoided here.
There need be no discussion, as my colleague from California
indicated earlier about whether or not a list is accessible,
whether it is classified. This amendment simply says if you
know that the person you're selling a 50-caliber weapon to is
an al-Qaeda member, then you fall within the statute.
So I hope that this amendment will be supported. I cannot
imagine why anyone would not support it. And, Mr. Weiner, are
you asking for--and I would yield back the balance of my time.
Mr. Lungren. Would the gentlelady yield?
Ms. Lofgren. I would yield.
Mr. Lungren. Or just a question.
Ms. Lofgren. Yes.
Mr. Lungren. And that is can the gentlelady tell me whether
or not this activity is currently prohibited under current law.
Because as I read it, it says whoever knowingly provides
material support or resources to a foreign terrorist
organization. This would be material support or resources. al-
Qaeda is an identified foreign terrorist organization; is
involved in a prohibited activity. So I'm just asking----
Ms. Lofgren. Well, no.
Mr. Lungren. Yours appears to be more narrowly drawn than
what the general law is now----
Ms. Lofgren. No, because this would not be to al-Qaeda
generally. It would be any member, any member of al-Qaeda.
Mr. Lungren. Well, as I understand--maybe someone could
tell me if I'm wrong. But as I would understand it, if you give
it to----
Ms. Lofgren. I think you are.
Mr. Lungren.--individual as a member of a terrorist
organization, that could be deemed as giving material support
to the terrorist organization.
Ms. Lofgren. This makes us very--you've got a deeming in
there that I don't think the statute has clearly identified.
This makes it all totally clear. If you know that the
person who is buying this 50-caliber weapon is an al-Qaeda
member, then you've fallen afoul of the statute.
Chairman Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman.
Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. I thank the Chairman, and I--you know, I have
watched this consistent approach to the 50-caliber weapons
consistently the last few years. I don't really know why the
50-caliber weapons have been demonized, but it continues.
And I'd inform the Committee a little bit of the history of
50-caliber weapons. They go back. I call them the original
buffalo guns, the Sharps 50-caliber. Buffalo Bill Cody. They
were the guns that settled the West.
They're a traditional gun in this country. They're hanging
in the Smithsonian. There's more modern versions, of course,
like there are with many other calibers of weapons.
To pick on the 50-caliber, if you could do that
successfully, then you're going to see a 51-caliber, a 49-
caliber. But that's not necessarily the point of this
amendment.
And I concur with the gentleman from California in that
there's already--it's already against the law to transfer these
weapons to al-Qaeda members today, but I believe the flaw in
this amendment is that it's only al-Qaeda.
And if you address al-Qaeda and say we cannot then send 50-
caliber weapons to them, which I believe is against the law
under the current code, then, by implication, if you continue
adding to this section of the code, you're going to see the
implication that you can transfer to maybe some other terrorist
organization that's on that list of 41 terrorist watch lists.
Ms. Lofgren. Would the gentleman yield?
Mr. King. I would yield. I yield to the lady from
California.
Ms. Lofgren. If this would pass, I would happily offer
additional amendments with additional terrorists organizations.
Mr. King. Reclaiming my time, I appreciate the alertness of
the gentlelady from California, and I yield back to the
gentleman from California.
Mr. Lungren. I'm just trying to figure out how you give
something to an organization without giving it to an
individual?
Does someone give the weapon to the corporate organization
al-Qaeda? It seems to me it's inherent in the already existing
statute that one gives a weapon to a member of a terrorist
organization; one is giving to the terrorist organization
knowingly, knowingly; knowing that the individual is a member.
So I think what the gentlelady is suggesting is already
covered and it doesn't have to be a 50-caliber. It could be any
type of weapon as I read the statute currently.
Mr. King. Reclaiming my time. And I'd add that the
ammunition that's referenced by the gentlelady as ammunition is
very strictly controlled ammunition. There's never been a jet
or a plane shot down by a 50-caliber weapon, and it would be
unlikely I think to ever get that perfect lucky shot at a
moving jet for that to ever happen; but other calibers to do it
as well under the same scenario. I'd yield to the gentleman
from Texas.
Mr. Nadler. Would the gentleman yield?
Mr. Gohmert. Well, he's yielded to me. Thank you. I
appreciate the gentleman from Iowa. 18 U.S.C. Section 2, this
is the Federal Criminal Code. It says whoever commits an
offense against the United States or aids, abets, counsels,
commands, induces, procures its commission is punishable as a
principal. And I'm telling you what. That's pretty stout
evidence. I've seen a whole lot less evidence convict and
accomplice as a principal. If you transfer any kind of weaponry
to a member of al-Qaeda, and you know they're a member of al-
Qaeda, I'd say pretty well most everywhere except certain
counties in California, you're toast. You're going to be
convicted as a principal and I'd a whole lot--rather than be
convicted--I'm sorry--deference to the gentleman from
California.
But the law takes care of this already. You do anything
knowing that somebody is a member of a terrorist organization,
you're going to be a principal as a terrorist yourself. Thank
you. I yield back to Mr.----
Mr. King. I thank the gentleman from Texas and I would add
that this amendment, though it maybe it's well intentioned, it
does clutter the code. It's clearly prohibited in the existing
code that we have, and I'd urge a no vote on the amendment. I
yield back.
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. I guarantee you I won't take 5 minutes. I just
want to submit somewhere in the record the Barney Frank
statements from years gone by when he served on this Committee.
Redundancy is sometimes good. And when we hear people saying
that the only objection that they have to something is because
it's already in the statute, and is redundant, then you know--
then you know they've kind of lost the way here.
Our statutes are replete with redundancies, and the fact
that this may already be covered--may that doesn't trouble me
at all. I'm wisely in favor of redundancy on this issue to make
it absolutely clear.
Ms. Lofgren. Would the gentleman yield?
Mr. Watt. I yield to the gentlelady.
Ms. Lofgren. I appreciate his comment. I don't believe it
is redundant, but if it is, I heartily concur that to be clear
on this matter is to defend our country, and I would hope--I
understand that we have a different point of view, and it's not
entirely just based on party lines either. Certainly, Mr.
Boucher has voted with the majority on all of the gun issues,
and he's not here now. But the--this goes beyond the fight on
gun ownership. And if we can't vote yes on this, I think we got
some explaining to do, and I thank the gentleman for yielding.
Mr. Watt. I yield back.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I rise in support. I
move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. I rise in support of this amendment and
associate myself with the remarks of the gentlelady from
California.
But I hadn't planned to speak on this amendment, but I had
to correct the record in one respect. I heard someone say that
no jet aircraft has ever been shot down by a 50-caliber weapon.
I beg to differ. Anyone who knows anything about the history of
the Korean War knows that every jet aircraft shot down by
another jet aircraft in the Korean War was shot down by a 50-
caliber weapon.
The MIGs and the F-86s and the F-80's were all armed with--
--
Mr. King. Would the gentleman yield?
Mr. Nadler. With 50-caliber machine guns. That's how you
shot down airplanes before you got the missiles. So don't tell
people that you can't shoot down a jet aircraft----
Mr. King. Would the gentleman yield?
Mr. Nadler.--with a 50-caliber weapon. Yes, I'll yield.
Mr. King. I thank the gentleman. I'm referencing the
definition that's in the amendment, which is a sniper rifle
rather than twin 50-caliber machine guns. Thank you.
Mr. Nadler. Well, reclaiming my time, as was said before, a
lucky shot from a even--not a machine gun, but from one--any--a
50-caliber weapon can, in fact, penetrate armor. It can shoot
down an aircraft. It's dangerous. I yield back.
Mr. Weiner. Will the gentleman yield on that point?
Mr. Nadler. Yes, I yield back.
Mr. Weiner. And I would also point out that I don't believe
that an aircraft had been used as a weapon before September
11th in an act of terrorism against the United States as well.
If our standard is to simply wait for some things to be
used before we ban it, I would argue that we wait too long. And
I yield back to the gentleman.
Mr. Nadler. And I yield back.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman and members.
There must be people listening to this discussion and debate
and wondering how we could spend so much time on this issue of
whether or not we're going to ban a weapon from being given to
or sold to terrorists, when, in fact, we're here talking about
the reauthorization of the PATRIOT Act and how we can secure
the homeland and make sure that we create public policy that
will better secure the homeland even at the risk of undermining
our civil liberties.
So you have an amendment that's clear. It has been argued
that it's redundant; that it's already in law, and then I
cannot help but raise the question so what harm will it do to
reinforce what is existing law. Why is it a resistance so
strong from the opposite side of the aisle on something that
obviously can do no harm, but could better identify the meaning
of the law as it relates to the transfer of arms to a terrorist
organization?
It seems to me something else underlies this. Something
else is at stake. What is it? What is this protection that is
being offered from my friends on the opposite side of the
aisle? Is it the sole argument that if you open the door in any
way to limit the possession and the use and the ownership of
guns, that somehow you're going to fly in the face of my
friends of the gun lobby.
Mr. Watt. Would the gentlelady yield?
Ms. Waters. Yes, the gentlelady will yield.
Mr. Watt. I heard that you were out meeting with Barney
Frank before you made this statement. It sounds like he rubbed
off on you on this redundancy issue. You're giving his speech.
Ms. Waters. Well, this is my speech, Mr. Watt, and if you
will sit back and listen to it----
Chairman Sensenbrenner. Without objection, the copyright
law is suspended for the next 3 minutes.
Ms. Waters. That's right. So let me just continue with my
speech and my take on this that says again that I think this is
better an argument for why those on the opposite side of the
aisle who would like to protect the gun lobby rather than a
concern, a genuine concern, about bending over backwards to
ensure that we secure the homeland and that we do everything
possible to keep weapons out of the hands of terrorists.
Now, we've not had that part of the discussion. We have
this discussion that's camouflaged about redundancy and a whole
lot of other things. But the fact of the matter is it certainly
is not going to do any harm.
So I would suggest that we hurry up again, Mr. Chairman,
and get to the vote, because I want to see the votes cast on
this one.
So move it, Mr. Chairman.
Chairman Sensenbrenner. The time of the gentlewoman has
expired. The gentleman from Texas, Mr. Smith.
Mr. Smith. Okay. Thank you, Mr. Chairman. I'd like to ask a
couple of questions or direct a couple of questions to the
gentlewoman from California, Ms. Lofgren. And let me say at the
outset that I don't doubt her sincerity or her motive in
offering this amendment.
But I have two concerns. The first deals with the language
where in the amendment it refers to a member of al-Qaeda.
That's a specific and single organization; whereas, the
statute, paragraph 2.339 refers to foreign terrorist
organization, which might include many more terrorist
organizations than just the ones she referred to.
Now, I realize that she can really do that under unanimous
consent and insert that phrase. So let me mention my second
concern, and it this: that as the gentlewoman knows when you
interpret legislation, specific language holds greater sway
than more general language, and I am concerned that by
specifically mentioning a type of weapon here, the 50-caliber
sniper gun or weapon, that that might, by implication, mean
that other types of weapons, other types of arms might not be
taken as seriously under the usual limitation of legislation.
So those are my two concerns and the reason that I would
oppose the amendment, and the gentleman from California is
welcome to respond to those concerns.
Ms. Lofgren. Mr. Smith, I drafted this because I felt that
in a way it was a test to see if there was anything that
regulating guns and terrorists that would pass your side of the
aisle.
If--first of all, if you feel that an amendment to clarify
the terrorist heading needs to be made, I would move that we
unanimously----
Mr. Smith. Reclaiming my time, I was aware that you----
Ms. Lofgren.--we do that by unanimous consent.
Mr. Smith.--probably ask for UC for that, but my second
concern was again the specificity that is mentioned in your
amendment might undermine the intent in regard to other types
of weapons.
Ms. Lofgren. If--I don't believe it does, but on that
point, if I may, I would ask unanimous consent to strike the
reference to 50 calibers and make it any firearms, if the
gentleman is suggesting that.
Mr. Smith. Well, I still think you run into the same
problem because----
Ms. Lofgren. Firearms or weapon.
Mr. Smith.--the statute goes beyond firearms and weapons.
It talks about all--what' the--if the gentlewoman wants to take
a look at it, it talks about all material support. Material
support is a lot broader than just weapons or firearms.
Mr. Lungren. Would the gentleman from Texas yield?
Mr. Smith. And so my concern would still hold I'm afraid.
Mr. Lungren. Would the gentleman from Texas yield?
Mr. Smith. Yes. Be happy to yield.
Mr. Lungren. I mean specifically by the statute, as the
gentleman refers to, material support of resources means all
sorts of things, including weapons, lethal substances,
explosives, personnel, transportation, other physical assets.
So it is all inclusive. Obviously, the caliber and every other
caliber----
Ms. Lofgren. Would the gentleman yield?
Mr. Lungren.--is included within the statute already.
Mr. Smith. It's my time and, yes, I'll yield.
Ms. Lofgren. It seems to me that your side of the aisle
can't have it both ways. Either it's already included or else
it's--the specificity does not cause harm. It can't be both.
Mr. Smith. Yes, it can. I'll reclaim my time, and I don't
want to belabor the point. But the point is the statute is
general. I think it's better to not single out any particular
type of weapon or firearm. It's better to leave the statute
general and have the entire section applied to any type of
material support and not by implication say that some material
support is more serious or less serious than others, and I'll
yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Maryland, Mr.
Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I move to strike
the last word, and I hadn't----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Van Hollen.--intended to join in this debate, but since
we are focused in specifically on the language in the section
that already exists in the PATRIOT Act regarding providing
material support; and the argument is this is redundant. It is
not. If you look at the existing language, one of the elements
of proving somebody guilty of aiding material support here is
they have to not just know that they're transferring to a
member of al-Qaeda, but they have to have knowledge or
intending that they are to be used in preparation for and
carrying out in violation of certain acts.
And the mere transfer of the weapon under this--even if you
know it's someone under al-Qaeda--is not covered by this
section, providing material support, which is one of the
reasons we offered the earlier amendment that related to
transferring firearms to people who were on the terrorist watch
list. You can't have it both ways. You can't say this is too
narrow because it only says al-Qaeda and doesn't cover other
terrorist organizations. You can't say it's too narrow. It only
covers 50-caliber and not all firearms, because the earlier
amendment that you rejected covered people on the Terrorist
Watch List and it covered all firearms.
And so what this amendment gets at is a very--it really
does go just to how far we're willing to go in terms of
providing terrorists with protections under the law.
And what this amendment does is says it is a--you are
offering material support if you transfer a weapon, knowing
someone is a member of al-Qaeda. The current language does not
make that a crime. That does not make it part of providing
material support. Under the current law, you not only have to
know you're providing to al-Qaeda, but you have to prove that
the individual knew that al-Qaeda member was going to then use
that weapon in a criminal action.
I think we can reasonably conclude that if you know you're
transferring it to a member of al-Qaeda, that the protection of
the American people requires that that, by itself, be
considered requiring material support, and that's what this
amendment----
Ms. Lofgren. If the gentleman would yield. I thank the
gentleman for his clarification, and I guess, you know, you
might know--not know what the al-Qaeda member wanted to do with
the 50-caliber rifle. Maybe they wanted to use in that
traditional buffalo gun referenced by our colleague from the
other side of the aisle. But it's a balance. What's more
important? The security of the American people or some mythic
buffalo gun history when you're talking about a member of al-
Qaeda?
I would just like to say this. I think that it's obvious
that the members on the other side of the aisle are not going
to accept this. I think the rationale for avoiding this has
been tortured at best. I think it's quite transparent and
unfortunate. And I yield back to Mr. Van Hollen, and thank you
for yielding me the time.
Mr. Van Hollen. I thank my colleague, and I just want to
again emphasize the point that the existing language in this
section on material support does not cover the contingency that
the Lofgren Amendment covers. Thank you.
Chairman Sensenbrenner. Would the gentleman yield back? The
question is on the amendment offered by the gentlewoman from
California, Ms. Lofgren. Those in favor will say aye. Opposed
no?
Noes appear to have it.
Ms. Lofgren. May I have a recorded vote, Mr. Chairman?
Chairman Sensenbrenner. A recorded vote is ordered. Those
in favor of the Lofgren Amendment will as your names are called
answer aye. Those opposed, no. And the Clerk will call the
roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith?
Mr. Smith. Mr. Chairman, I vote no.
The Clerk. Mr. Smith, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 22 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The gentleman from New York, Mr. Weiner.
Mr. Weiner. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Weiner. Two one two. Area code for some of New York
City.
The Clerk. Amendment to H.R. 3199, offered by Mr. Weiner
and Ms. Sanchez. At the end of the bill, add the following new
section. Section----
Mr. Weiner. Mr. Chairman?
The Clerk. Expansion of grants to first responders----
Mr. Weiner. Mr. Chairman?
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. Point of order is reserved. The
gentleman from New York.
Mr. Weiner. Mr. Chairman, this is an amendment that----
Chairman Sensenbrenner. Does the gentleman ask unanimous
consent that the amendment be considered as read?
Mr. Weiner. I thought that had already been done. Yes, I
do, Mr. Chairman.
Chairman Sensenbrenner. Without objection, subject to the
reservation by the gentleman from Texas. The gentleman from New
York is recognized for 5 minutes.
[The amendment of Mr. Weiner and Ms. Sanchez follows:]
Mr. Weiner. Mr. Chairman, the amendment that the gentlelady
from California and I offer is one that frankly has found favor
in this Committee on two other occasions. When we considered
the 9/11 Commission recommendation, the legislation to
reauthorize the COPS Program and insert it in that vehicle, it
was passed by this Committee, as it was in the DOJ
reauthorization bill.
In both cases, the leadership of this House and the Rules
Committee stripped that language from the bill. This is another
thrust at the same attempt. This picks up on the grant making
that was in the PATRIOT Act that we're reauthorizing today. It
would provide $1 billion for the next 3 years; 13,000 new cops
on the beat nationally each year. And it would do what
Secretary Ridge argued we needed to do, which was to start our
homeland security fight in our home towns.
I don't need to argue before this Committee the value of
the COPS Program. Every member in this body that are in
districts has been helped by the COPS Program. It provides
Federal assistance to provide law enforcement that are now
spending so much of their time doing anti-terrorism work, and
in the interest of time, I yield to the gentlelady from
California, Ms. Sanchez.
Ms. Sanchez. I'd like to thank the gentleman from New York
for yielding some time and for letting me join him in offering
this very important amendment.
Just very briefly, the Weiner-Sanchez Amendment achieves
two very important homeland security objectives.
First, it provides more funding and authorization for law
enforcement agents, including those in the community oriented
policing programs. And second, it helps increase the security
measures and new technologies that will help prevent us from
future terrorist attacks.
As my colleague from New York has said, it's found favor
with this Committee and I would urge my colleagues on both
sides of the aisle to support this amendment.
And I yield back to the gentleman from New York.
Mr. Weiner. And before I yield back, I just want to commend
the Chairman, who has been open minded in support of the idea
of getting COPS reauthorized, and we've tried to do this on a
couple of occasions. This is this year's moving vehicle and the
most appropriate place to insert this language, and with that,
I yield back my time.
Chairman Sensenbrenner. Does the gentleman from Texas
insist on his point of order?
Mr. Smith. Mr. Chairman, I do insist on my point of order.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Smith. Mr. Chairman, I want to make the point of order
that this amendment is not germane. Under House Rule 16, we are
prohibited from considering any amendment that is--has a
subject different from that under consideration.
And in this case, there is no provision, title, section in
the PATRIOT Act that deals with the COPS Program and for that
reason and because it doesn't fall under any other primary
purpose of the PATRIOT Act, this amendment is non-germane, and
I would insist on that point of order.
Chairman Sensenbrenner. Does the gentleman----
Mr. Weiner. Mr. Chairman, may I be heard on the point of
order?
Chairman Sensenbrenner. The gentleman from New York.
Mr. Weiner. I would refer the gentleman to the section of
the PATRIOT Act that he just said is not in the bill that
refers to, and I quote: ``first responder assistance.'' These
are grant authorizations, terrorism prevention grants. In fact,
there is a section in the PATRIOT Act that refers to this.
As far as there not being in the title, well, we are
reauthorizing the PATRIOT Act as indicated on the notice from
the Committee, as indicated on the bill from the Committee, as
indicated on the discussion draft from the Committee, as
indicated from the memo to members from the staff and the
Chairman of the Committee. So clearly, it's within the purview
of the PATRIOT Act as it has been in the past.
Mr. Smith. Would the gentleman from New York yield briefly?
Mr. Weiner. Certainly.
Mr. Smith. I just want to make the point that the provision
to which the gentleman refers is actually not being
reauthorized today, nor is it under the purview of the primary
purpose of the bill being reauthorized today. And for that
reason, I still think it's non-germane.
Mr. Weiner. Well, if it----
Chairman Sensenbrenner. The chair is prepared to rule. Now,
for the reasons articulated by the gentleman from Texas, Mr.
Smith, that the amendment proposes a different subject than
that contained in the bill, the chair sustains the point of
order.
Are there further amendments? The gentlewoman from
California, Ms. Lofgren?
Ms. Lofgren. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Lofgren. It's 34.
The Clerk. Amendment to H.R. 3199, offered by Ms. Lofgren
of California.
At the end of the bill, add the following: Section,
Enhanced Review of Detention----
Ms. Lofgren. I'd ask unanimous consent that the amendment
be considered as read.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. And the gentlewoman from California is
recognized for 5 minutes.
[The amendment of Ms. Lofgren follows:]
Ms. Lofgren. Mr. Chairman, the material witness law,
enacted in 1984, allows the government to arrest persons who
are needed as witnesses in ongoing criminal investigations, but
who might not comply with the conventional subpoena.
In essence, this law was designed to get evidence from
frightened or recalcitrant witnesses. It was not designed as a
counter-terrorism tool to allow the government to detain anyone
it had suspicions about.
Yet, there are real questions about how the Department of
Justice is utilizing this statute. Specifically, it appears
that the Department may be bending the material witness statute
into a tool to detain suspects without charge or due process,
while it investigates them for possible links to terrorism. As
the Chairman may recall, during our hearings, I asked the
Department of Justice for information on this very subject. And
to date that information has not been forthcoming.
In June 2005, a report by Human Rights Watch found that 70
suspects held as material witnesses since 9/11, of the 70,
almost half were actually never brought before a grand jury or
a court to testify. The report also found that many were never
told the reason for their arrest or allowed access to a lawyer.
Of the 70 suspects, only 28 were ever charged with a crime,
most of which were unrelated to terrorism.
This report also states that about one-third were held for
at least 2 months and that one material witness was imprisoned
for a year. They claim or the report claims that many of these
individuals were held in solitary confinement, subjected to
harsh and degrading high security conditions usually reserved
for prisoners accused or convicted of the most dangerous
crimes. The report also says detainees described abuse.
Now I don't want to take the word of a outside group for
it. I would like to look at what the Department itself has done
and we are advised that the Department has apparently
apologized to 13 people for using the material witness statute
to detain them.
Among them, Brandon Mayfield, a lawyer in Seattle, he was--
the FBI detained Mr. Mayfield as a material witness but in
reality, he--they did not believe that Mr. Mayfield was a
witness to anything. They believed he had participated in the
Madrid terrorists bombings because they mistakenly linked his
fingerprint to evidence found at the bombing site. Although Mr.
Mayfield hadn't traveled abroad for more than 10 years and
although the Spanish authorities doubted the print matched and
the FBI picked up Mayfield as a material witness and held him
for 2 weeks without bringing any formal charges against him,
they ultimately released him and apologized.
A couple of months ago, the Chairman himself forwarded a
letter to the Attorney General that reiterated the questions
that I asked at the hearing, and to date I don't believe we
have got the statistics that we requested. This amendment----
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Lofgren. I certainly will. I hope my statement is
incorrect; that you're about to tell me so.
Chairman Sensenbrenner. No. You've convinced me this is a
good amendment, and I'm willing to accept it.
Ms. Lofgren. Thank you, Mr. Chairman. This amendment only
asks for reports, and I appreciate your willingness to accept
it.
Chairman Sensenbrenner. The gentlewoman yield back?
Ms. Lofgren. I do .
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from California, Ms.
Lofgren. Those in favor will say aye. Opposed, no? The ayes
appear to have it. The ayes have it. The amendment is agreed
to. rollcall is requested.
Those in favor of the Lofgren Amendment will, as your names
are called answer aye; those opposed, no, and the clerk will
call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Gallegly. Mr. Chairman, how am I recorded?
The Clerk. Mr. Chairman, Mr. Gallegly is recorded as a no.
Mr. Gallegly. I'm sorry, aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lofgren? Lungren?
[Laughter.]
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
[No response.]
The Clerk. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
[No response.]
The Clerk. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
[No response.]
The Clerk. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from Maryland, Mr. Van Hollen?
Mr. Van Hollen. Thank you, Mr. Chairman. Aye.
The Clerk. Mr. Van Hollen, aye.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters?
Ms. Waters. Ms. Waters, aye.
The Clerk. Ms. Waters, aye.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. Mr. Chairman, I vote aye.
The Clerk. Mr. Smith, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? The gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will call the report.
The Clerk. Mr. Chairman, there are 34 ayes and 0 noes.
Chairman Sensenbrenner. And the amendment is agreed to.
Are there further amendments?
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Schiff. And as an aside, I think rather than a Scott-
Lungren amendment, we need a Lofgren-Lungren amendment. This,
however, is not that.
Chairman Sensenbrenner. Okay. The clerk will report the
correct amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of
California. At the end of the bill add the following new
section: Sec. ___. Electronic Surveillance Targets. Section
105(c) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805(c)) is amended--(1) in paragraph (1)(A)----
Mr. Schiff. Mr. Chairman, I request consent to deem the
amendment as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Mr. Schiff follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. Mr. Chairman and members, some have claimed
that the PATRIOT Act authorizes so-called John Doe roving
wiretaps, that is, orders that identify neither the specific
target nor the specific location of the interception. My
colleague, Mr. Issa, offered a good amendment, which was agreed
to by the Committee, to make sure that there was some level of
ascertainment of the location of the wiretap. My amendment goes
to the individuals that are the targets of a roving wiretap.
The Department of Justice maintains that even if the
Government is not sure of the actual identify of the target of
a wiretap, FISA, nonetheless, requires the Government to
provide a description of the target prior to obtaining the
order. And it may be in many cases--and I think the Department
is making a very legitimate argument--that although the
identity is not known in the sense of knowing the name of the
specific individual, they have a specific individual in mind
that they are requesting the wiretap for. I think that's
appropriate. That's an appropriate use of a John Doe wiretap.
The concern that has been raised is that if the description
is general of the individual and the individual who's the
target changes when more information is learned, it was in the
beginning thought to be one person, later thought to be another
person, it should not be sufficient to use the same application
for a different individual target. And Attorney General
Ashcroft explained in a letter to Chairman Hatch that the
Government cannot change the target of its surveillance under a
wiretap order. It must, instead, apply to the FISA court for a
new order for the new target. That is, I think, the policy of
the Justice Department. This would make it a legal requirement,
and I think it does nothing more than ratify what Attorney
General Ashcroft said is the practice of the Department, and
that is, in the case of a roving wiretap where the identity is
not known by name but the person has been identified, if
subsequently it's learned that the real target is someone else,
you should have to go back to the court identifying the other
individual.
So this amendment would give some greater protection. It
would make statutory what the Attorney General has said is
Department of Justice policy. And I think in combination with
what Mr. Issa offered, which ensured the protections were there
for the targets that were not individuals, that were locations,
this goes to individuals and says, yes, it's all right if you
don't know the name, as long as you have a particular person in
mind; if the particular person changes, you need to go back to
get an application for the subsequent individual.
I'd be happy to entertain any questions, but I would urge
your support of the amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Mr. Chairman, I reluctantly rise in opposition,
and I say that because I only--you know, this is somewhat new
to me, your question. But looking at it, I believe we mostly
have taken care of this with the 10-day return if there's a
change in the communication that's being tracked. And what I'd
like to suggest, because we do have an ongoing work toward a
floor amendment on 206, is that I'd be happy to work with the
gentleman on making sure that we're both comfortable at the
floor that this would be covered under the authority of the
judge. And I think the gentleman from California would agree
with me that what we're trying to do is make sure that there's
a loop back when there's a change to the judge, because the
truth is that we're not--we don't want to be handling
individual cases, but we do want that branch of Government that
normally handles these to handle them. But I----
Mr. Schiff. Would the gentleman yield?
Mr. Issa. Yes, I would.
Mr. Schiff. I appreciate that, that the majority often gets
no more notice of amendments than the minority gets of the
majority amendments. And, you know, we looked at your amendment
in good faith and supported it. My amendment is really, I
think, the counterpart that deals with the individuals, whereas
yours dealt with the locations. It does nothing more that I can
see than codify what the Attorney General, the last Attorney
General has said is the Department policy; that if it becomes
known during the investigation that the tap requested on a
specific individual turns out not to be the right one, that
they can't simply apply that wiretap to someone else because
they don't have a name attached to it. They have to go back to
the court.
So this codifies what I understand is the Attorney
General's policy, and if--you know, I'd be happy to work on
language later if you find some question about that, but----
Mr. Issa. Reclaiming my time, I do expect that we should
continue having this discussion through the final passage of
the bill. But what I want to point out is that you can't go to
a judge with a description of a white male and that is not
sufficient, that there is, in fact, already protections to the
court that you have to have described the individual with a
considerable--a lot more detail than that. And I believe that
to be true, and so I believe this is unnecessary----
Mr. Schiff. May I----
Mr. Issa.--but I would like to make sure that we both
understand----
Mr. Schiff. May I give the gentleman a specific example of
what I'm talking about?
Mr. Issa. Certainly.
Mr. Schiff. Let's say that the target under the FISA
application says an Arab male between the ages of 22 and 27,
living at X address. It is later learned that the actual target
is his roommate who also meets that description. The concern
has been raised is that you can give a sufficiently general
application and then apply it to someone else. The Attorney
General has said, no, we don't operate that way; if we find out
it's the roommate and not the one that we were seeking the
warrant on, we'd go back to the court.
So this, I think, codifies that practice of the Department
and gives a level of comfort and security to the American
people to know that with this greater authority we gave with
roving wiretaps that there is a limit to it, and that if we
have identified the wrong party, when we identify the right
party we go back for the application.
Mr. Issa. Reclaiming my time, I again reiterate that my
present understanding and the reason that I don't support this
amendment at this time but do want to continue working with the
gentleman is that I believe that the--that we are already close
enough as a practical matter because a judge does have to say
that's good enough, that's not good enough a description. But I
do expect to be looking at 206 between now and the floor, and I
absolutely promise the gentleman that I will include in our
amendment if at that time we feel that we've gleaned something
new. But as of right now, I don't believe your description is
accurate. I believe--it may be that they would come and say
it's one of these two individuals and these two individuals
cohabitate and, therefore, we're going after them. But it is
not--the judge's authority is already sufficient even if the
Justice Department were to be less specific in their policy
and, therefore, I believe this amendment is unnecessary. And I
yield back.
Chairman Sensenbrenner. The question is on----
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I just have some questions, and I'll yield to
the gentleman from California, the proponent of the amendment.
But maybe he could explain to members of the Committee, in a
John Doe warrant what is the current practice when there is--
there emerges sufficient information to identify by name the
individual? What occurs then and does your amendment
accommodate that new information?
Mr. Schiff. Will the gentleman yield?
Mr. Delahunt. I yield.
Mr. Schiff. I thank the gentleman for yielding.
Yes, the amendment does accommodate that situation. What
Senator Hatch was concerned about, what he raised with the
Attorney General was we don't want to have a situation where we
have a roving wiretap not specific to any individual that can
be moved from individual to individual. That's not the purpose
of a roving wiretap. The purpose of a roving wiretap is when
you have a suspect and they use different phone facilities, you
don't want to have to go back to court for a different
application every time they change phones.
It was not designed to say when we think it's one person
but it turns out to be another person, we want the wiretap to
follow whoever the latest suspect is. That was never the
purpose of the roving wiretap. And the Attorney General told
Senator Hatch that's not what we use it for, that's not how we
operate. But, nonetheless, there is a concern out there among
our constituents that there isn't a meaningful statutory
limitation on when a roving wiretap can rove, if it can rove
from person to person.
Now, I'm not hearing anyone on the other side of the aisle
saying that this amendment is any different from the policy of
the Justice Department. And if this is consistent, as I think
it is, with the Attorney General's letter, there shouldn't be
any opposition to this. And I appreciate the gentleman's offer,
but I see no more objection to this amendment than we had to
the gentleman's amendment, and I hope that my colleagues on the
other side of the aisle will make the Justice Department
practice, which is a solid one, the law of the land. And I
would hope also that my colleagues on the other side of the
aisle wouldn't be advocating that we deviate or depart from the
Justice Department policy and somehow adopt a broader practice
that says when we've gone to court with a specific person in
mind, even though we didn't know their name but we sufficiently
identified them, and we find out it's somebody else, we
shouldn't have to go back to court. I don't think that would be
good policy. This amendment gives the country the confidence to
know there is a limit, and it's a limit consistent with what
the Attorney General has said.
Mr. Issa. Would the gentleman from Massachusetts further
yield?
Mr. Delahunt. I yield to the gentleman.
Mr. Issa. Thank you. And I truly respect the gentleman's
decision that he may feel that this isn't covered. I might
suggest that, in fact, if you--if you played fast and loose,
which the Justice Department doesn't as a matter of policy, you
would also create a defect in the warrant. There is no question
that the law does not allow you to specify somebody and then
simply move it from people to people who might loosely fit that
description. That would be a defect in the existing law that
would, in fact, make it a defect in the warrant.
Mr. Schiff. Would the gentleman from----
Mr. Delahunt. Reclaiming my time, I yield to----
Mr. Schiff. I agree with the gentleman, but if that's the
case, then we are clearly codifying existing practice and
existing law, so there should be no objection. If you can't
move from person to person, then this provision that says you
can't move from person to person should be completely
unobjectionable. And if it gives the American people greater
confidence that there are some limits, then there's no reason
not to provide that confidence. And I think we should. That's
why we're here. And the gentleman's amendment, frankly, the
same argument could have been made against that, that, in fact,
this is the good practice of the Justice Department, it's
already required by the court so we don't need to do what the
gentleman did. But the gentleman offered it because we ought to
make this very clear to the American people what the limits
are. It's the same purpose behind my amendment, and I thank the
gentleman for yielding.
Mr. Delahunt. Reclaiming my time, I would encourage my
colleagues to support the amendment. All I've heard, to be
perfectly candid, is the fact that it's unnecessary. I would
suggest it could be critical. Right now it's a matter of
Justice Department policy. The law needs clarity on this, and I
think this is a positive amendment. And I would hope that the
gentleman from California would support the amendment, and if
there are differences and clarification is needed, to do that
from Committee to when the floor is managed, and I yield back.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Gohmert. I have more of a problem than just redundancy
or duplication. With regard to subsection (E), where it says
``in the case where the target is an individual, that the order
shall only apply to the particular individual identified or
described under subsection (c)(1)(A),'' the problem there is,
it strikes me, if I'm on the court of appeals, as I once was,
and I'm reviewing something that comes in, if there is a
recording of someone other than the target who is specified--
and, let's face it, conversations are normally at least two-
way, two-party situations. So you got someone who is not the
target individual talking to somebody who is. They're talking
about a crime. Under this, the way I read it, I think you only
get to record half of the conversation. And if it violates this
provision, if this were enacted into law, then some court's
probably going to throw out half the conversation and keep it
from making sense because it violates this provision.
So I see it creating a lot of problems for prosecution by
complicating the matter. The way it stands now, they can record
the whole conversation. They can use it in litigation, if
necessary, in prosecution. And I hate to make--to tie the
prosecutor's hands and keep him from recording and following up
on whoever is involved in the conversation.
I yield to the gentleman from California.
Mr. Issa. I thank the gentleman for yielding.
I might also, in speaking directly to the example the
gentleman from California gave for why you thought you should
have this, I might suggest that since--the reason for a roving
wiretap being applied to a John Doe is that normally the John
Doe is deliberately concealing their identity. We're looking
for, you know, Mohammed XYZ who chose to have an alias. And our
best belief is that we are--we are going after this person at
this place. That may, in fact, change, but the John Doe we're
going after never changes.
So, in your example, where we think that one of two people
sitting in a residence is the John Doe we want, and it turns
out to be the other John Doe, your--you would say you have to
go back again or you have a defect because you got the wrong
John Doe between two of them. In fact----
Mr. Gohmert. Would the gentleman yield?
Mr. Issa. Just 1 second. Let me finish the thought. In
fact, as it is now and with the existing policy of the Justice
Department, they are still going after the description of the
John Doe that they believe to be the terrorist, and, in fact,
that's where you would sort through the two at one location or
ten different cell phones as they keep dropping them to find
the real alias.
We are dealing, in the case of these John Does, normally
with somebody who is trying to disguise who they are. And I
yield back. The gentleman from Texas can----
Mr. Gohmert. Thank you. Reclaiming my time, Mr. Chairman, I
yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman----
Mr. Wexler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Wexler.
Mr. Wexler. Thank you, Mr. Chairman. And I'd defer to Mr.
Schiff.
Mr. Schiff. I thank the gentleman for yielding.
Very briefly, Mr. Chairman, in response to the two points
made by my colleague from Texas and my colleague from
California, again, either my colleagues are arguing that the
Justice Department should not maintain the policy of the
Attorney General as expressed by Attorney General Ashcroft that
the Attorney General has restricted the DOJ from being able to
shift from one subject of a warrant to a completely different
subject without having to go back to the court, I think that
would be a tremendous misstep. And to the degree that you argue
against this amendment, you argue against the policy of the
Justice Department.
Second, the argument that you make that, well, somehow this
will exclude half the conversations, that argument could be
made with equal applicability to Mr. Issa's earlier amendment
regarding the specificity of location. Well, what if the
location is broader than described? Does that mean you can only
listen to half the conversation? Frankly, I think it's a
strained interpretation of both amendments, and I think a fair
reading of this amendment is precisely what it appears to be,
that where the target is an individual, the order shall apply
to that individual. And that is what the Justice Department has
said they are doing. That is what they say they must do. And
we're making it clear in this amendment. But if my colleagues
choose to vote against the policy of the Justice Department as
reflected in this amendment, then that seems to be the position
they're in. But I would hope that out of the same kind of
bipartisan spirit that adopted Mr. Issa's amendment we would
adopt this amendment as well. And I would hope we would not all
fall in love with our own language so much that we can't find
areas for improvement.
And I'd yield back, Mr. Chairman.
Chairman Sensenbrenner. Does the gentleman from Florida
yield back?
Mr. Wexler. Yes.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from California, Mr. Schiff. Those in
favor will say aye? Opposed, no?
The noes appear to have it----
Mr. Schiff. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. Those
in favor of the Schiff amendment will as your names are called
answer aye, those opposed no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 22 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments? The gentleman from New York,
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at
the desk. It's offered by myself and Ms. Jackson Lee. That's
how you can identify it.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler
and Ms. Jackson Lee. At the appropriate place in the bill,
insert the following: Sec. ___. Limitation on Roving Wiretaps
under Foreign Intelligence Surveillance Act of 1978. Section
105(c) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805(c)) is amended--(1) in paragraph----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment of Mr. Nadler follows:]
Chairman Sensenbrenner. The gentleman from New York is
recognized for 5 minutes.
Mr. Nadler. Thank you. Mr. Speaker, this--Mr. Speaker. Mr.
Chairman, this amendment, as the last one, deals with Section
206, the roving wiretaps. Now, in the PATRIOT Act we provided
for roving wiretaps, that is, wiretaps that require that--you
know, where you identify the person and the wiretap applies to
any site that that person might use. And that makes sense. It
catches up with technology so that if you get a wiretap for one
cell phone and he switches cell phones or uses a pay phone, you
can just keep--you can follow him. You don't need a new
application.
But then we did John Doe wiretaps where we say, okay, we
know that someone is using a certain phone or a certain set of
phones in a certain neighborhood that we have reason to believe
that someone is for no good purposes but we don't know this
fellow's name, so instead of getting a wiretap that follows a
person, we get a wiretap a--wiretaps at certain places, certain
phones, certain electronic facilities, without a name on it.
And that's also fine.
The problem comes in when you combine those two and you
have a John Doe roving wiretap, and, in effect, that gives the
FBI almost limitless power to have a wiretap application that
doesn't name an individual and doesn't name a place. So it's a
roving wiretap with no specification of an individual, which
means you can surveill the entire--an entire neighborhood. That
is too much power. I am not sure that it was ever contemplated
that these two separate sections could be combined.
What this amendment says, in effect, is you can have a
roving wiretap without John--if you name the person. You can
have a John Doe wiretap, but it can't be roving. In other
words, you can wiretap either the person, wherever you think he
may be speaking, or the place, looking for someone whom you
don't know. But you can't combine them and say we're going to
have an application for an unknown person in general places.
That's almost like the British Writs of Assistance we objected
to in 1760. It's a general writ. And American law cannot permit
general writs. There's nothing more--there's nothing more
offensive to the Fourth Amendment, and, in fact, the only
reason that the justification for the constitutionality of the
roving wiretap provision of the PATRIOT Act in Section 206 was
that it required naming the particular--specificity of the
particular person. But if you remove the specificity of the
person and you have no specificity of the place, you have a
general warrant. I don't see how it's constitutional.
Now, there may be circumstances where you want a roving
wiretap, and that's fine. There may be circumstances where you
want a John Doe wiretap. That's fine. But this amendment says
you can have one or the other, but you can't combine them
because then there's no limitation whatsoever.
Mr. Conyers. Would the gentleman yield?
Mr. Nadler. Yes, I'll yield.
Mr. Conyers. What would happen if they do two separate
ones, one for each instance?
Mr. Nadler. Well, that----
Mr. Conyers. Would it violate----
Mr. Nadler. Reclaiming my time, if you do it--but then you
have to--if you're doing two separate ones, in one you have to
name a person, in the other you have to name a place, a
specific--or a set of things. And all this amendment says is
you have to name that. It says--one or the other. It says in
paragraph (A), if the identity is unknown, in other words, it's
a John Doe wiretap, you have to specify the facilities and
places. If it says--if any of the facilities or places are
unknown, in other words, it's a roving wiretap, you have to
identify the target. You can't have an unknown target and an
unknown place because then it's just general. And I can't
imagine how we can allow general--general all-embracing
wiretaps.
So I urge the adoption of this amendment, and I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Thank you, Mr. Chairman. And I do thank the
gentleman from New York for looking at this, this complicated
subject, and trying to come up with very worthy amendments.
In this case, I have to oppose this, and I have to oppose
it specifically for what we're talking about, which is this--if
we were to adopt Mr. Nadler and Ms. Jackson Lee's amendment,
what would happen is we would be able to follow a Member of
Congress who's using a disposable cellular phone, a new one
every day, and we'd be able to deal with an al Qaeda operative
who is clandestine as long as he stayed at the same phone. But
we wouldn't be able to deal with that--that hidden person that
is operating that we only know some things about because
they're trying to remain anonymous if they went from phone to
phone. Here----
Mr. Nadler. Would the gentleman yield?
Mr. Issa. Just a moment. Here and in Afghanistan and in
Iraq, we are using the techniques of knowing something about
the individual we're looking for, and we know something about
the one or two or three phones they may be using at a given
time and changing. Specifically when we envisioned this
legislation, we did envision the idea that you would not--you
might know who the person was in principle but not by their
correct name, which is all a John Doe warrant often is, and we
clearly saw them as using modern technology to go from phone to
phone.
With that, I'd yield for the question.
Mr. Nadler. Well, I think the gentleman--excuse me. I think
the gentleman is a little incorrect. If you know the identity
of the person, you know--it doesn't have to be his name. But if
you know that the person with some identifying characteristics
is a suspected al Qaeda agent, and you don't know where--you
know, what facilities he's using, you'd get that as a roving
wiretap with the identifying characteristics. But you have to
have some identifying characteristics. If you don't have any
identifying characteristics but you know where--where you think
you know, then you--then you get a John Doe wiretap.
Mr. Issa. Reclaiming my time, I wish I could agree with you
because that understanding needs to be gleaned. A John Doe is
anytime you don't actually know the guy's correct name. And
often you have doing--and from my civil days, doing business
as, it's still a John Doe. You don't know for sure the correct
legal name, and so you still use John Doe.
The fact is John Doe is about not having an exact, but you
can have a pretty darn good description. You can know the guy
was in Morocco last week and then he was here and he was there,
and you can do an awful lot of describing and still be a John
Doe.
So with all due respect to the gentleman from New York, the
combination does exist. It exists every day in the pursuit of
al Qaeda and other terrorist organizations in which you know a
great deal, but you still don't have an exact, correct,
verifiable name, and, by the way, they're using a new cell
phone every day.
With that, I'd yield back.
Mr. Berman. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. If the John Doe warrant--if this is--if the
roving wiretap with the John Doe warrant is simply a way to get
someone they have no--to give a blanket authorization for the
FBI to surveill anyone at any place by having no description
and no place, then I'm very supportive of the gentleman's
amendment. But I would like--I hear you say if the identity is
unknown. What if it is a John Doe warrant because they don't
know the name, but they have very specific characteristics,
enough to persuade a judge to issue a John Doe warrant, but
they don't know where he is? They have a clear sense of who
they want, but they don't know the person's name. If that is
called a John Doe warrant, why--why do we want to limit their
ability to get a roving wiretap on this person whose identity
they have many descriptions of, and let's assume for a second
they're operating in good faith, why do we want to restrict
their ability to surveill that person in part to get that
person's true identity and other information where they can--
they can make the case that that person with those
characteristics is an agent of a foreign power? That's the one
problem I have with the word ``the identity is unknown.'' Does
the--are you saying if you have particular characteristics but
don't know the name, then your section doesn't apply?
Mr. Nadler. If the gentleman would yield?
Mr. Berman. Sure.
Mr. Nadler. My intention here is not the simple fact--and I
hope Mr. Issa will listen, too. We refer to it colloquially as
a John Doe amendment--as a John Doe wiretap. But what we're
talking about and what I intended--and I'm perfectly willing to
entertain suggestions for making this clear--is what the
gentleman was saying, some identifying characteristics. If you
have enough to know who it is, you don't know his name--his
name is not the important thing, but there has to be some
limitation on the power so that it isn't a general writ. If
you're doing a roving wiretap and you know generally about the
person you're looking at and so you can describe it with some
specificity, even without the name, then that would be okay.
But that's what I'm trying to do in this amendment.
Mr. Berman. Reclaiming my time, in other words, if there's
a practice going on or that could go on under this statute,
which would essentially allow law enforcement to pocket
authorizations to surveill without--they could apply at any
time afterwards to anybody they wanted to based on at that
point thinking that person might--might be a terrorist, I share
your concern and think we ought to correct that, but not clear
for me from your amendment. I'll yield to somebody who's
actually been in----
Mr. Nadler. Would the gentleman yield for a moment? Would
the gentleman yield for a moment? Thank you.
I am going to, without prejudice, withdraw this amendment
now and come back to it later or tomorrow with better--with
language that will go into that because----
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments?
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. I have an amendment at the desk. It's the Watt
amendment, not the Watt-Waters amendment.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Watt.
Insert at an appropriate place the following----
Mr. Watt. Mr. Chairman, I ask unanimous consent----
Chairman Sensenbrenner. The clerk will continue to read
until we can see the----
The Clerk. Sec.01. Warrants executed in districts other
than where issued. Whenever a warrant may be executed in a
district other than the district in which it was issued, a
person against whom it may be executed may seek to quash that
warrant in the district in which it is served, or, if the
person is a corporation, in any district in the State wherein
the corporation was incorporated.
[The amendment of Mr. Watt follows:]
Chairman Sensenbrenner. The gentleman from North Carolina
is recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Chairman, I spent a lot of time in courts practicing
law, 22 years, and I always had this philosophy that the courts
and our court system should--should try to be as accessible to
the people who were being brought into contact with it as
possible.
Currently, Section 219 of the PATRIOT Act authorizes
nationwide search warrants in terrorism-related investigations.
Section 220 allows a single court in a single district to issue
a search warrant for electronic evidence that is valid
nationally, essentially expanding Section 219 to standard
criminal investigation. I'm not sure that this result was
intended, but that's certainly where we are at this point.
Receiving an out-of-State search warrant under either
section may impose an insurmountable burden on the recipient if
he wishes to challenge the warrant. For example, Section 220
makes it more difficult for large communication service
providers to seek modification of burdensome disclosure orders.
Instead of being able to contest within their home Federal
district, they must challenge in whatever district throughout
the country the order originated.
My amendment injects an element of fairness into the
process for warrant recipients and their attorneys by allowing
them to challenge a warrant issued under Sections 219 and 220
if an individual in the district where the warrant was served,
and if a corporation in the district where it was incorporated.
Again, I believe this amendment ensures openness and efficiency
and more accessibility.
The deck should not be stacked against those against whom
the Government has some suspicion, and it certainly shouldn't
be stacked against some electronic provider against whom they
have no suspicion, they're just trying to get evidence. I think
the Government should be bearing this burden. Here this
amendment nearly makes it possible for innocent targets to
challenge unfair or erroneous warrants in a venue that is
convenient to them. It imposes no harm on the Government. It
does not undermine its investigative capacity, and I ask my
colleagues to support the amendment, and yield back----
Ms. Lofgren. Could I ask a question before you yield back?
Mr. Watt. Yes. I yield to the gentlelady.
Ms. Lofgren. I thank you. The rationale for the section in
the Act meant a lot to me, frankly, because it relieved a
burden on the courts in San Jose, California, that ended up
issuing almost all of the warrants for--even though the case
had absolutely nothing to do with anything anywhere near Santa
Clara County.
I do not object at all to what you're attempting to do, but
I do want to clarify that this is at the discretion of those
seeking to quash, and would not preclude quashing in the court
where the warrant was issued. This would just be an addition to
that?
Mr. Watt. Yes.
Ms. Lofgren. Then I think this is perfectly sensible, and I
thank the gentleman for yielding.
Mr. Watt. I yield back the balance of my time.
Chairman Sensenbrenner. Gentleman from Texas, Mr. Smith.
Mr. Smith. Mr. Chairman, I oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. And, Mr. Chairman, let me say in opposing the
amendment, I don't oppose the gentleman from North Carolina's
goal, which I think is a worthy one, and what he hopes to
accomplish with this amendment. However, my problem is,
frankly, that I don't----
Mr. Watt. Mr. Chairman, I'm having trouble hearing Mr.
Smith. I'm sorry.
Mr. Smith. I'm sorry. Mr. Chairman, my problem is that I'm
not sure what problem it is that this amendment seeks to
address. It has long been the case that grand jury subpoenas
are issued in the district of the investigation to gather
relevant information, and must be challenged there. The process
has worked for grand jury subpoenas for many years with no
apparent problems that I'm aware of. I'm also not aware of any
evidence that the warrants issued in the district of the
investigation cause any significant problems for keepers of
electronic records or has deterred them from challenging
warrants.
On the other hand, the benefits in efficiency and cost
savings are obvious and have been substantial.
Finally, this amendment would create dueling district
courts, which in some cases would operate in even different
circuits. If a search warrant for electronic surveillance is
challenged, the legality of the warrant should be determined by
a judge familiar with the individual investigations.
In summary, Mr. Chairman, I'm not sure that we have any
significant problems that need to be addressed by this
amendment, and second of all, I think we ought to avoid the
situation where you have really one district court almost
becoming an appellate court for another district court, and I
know the gentleman wouldn't want to see that occur either.
Mr. Watt. Will the gentleman yield?
Mr. Smith. And I'll be happy to yield to the gentleman from
North Carolina.
Mr. Watt. I thank the gentleman for yielding. First of all,
if he doesn't think there is a problem, then he obviously
didn't hear what either I or Ms. Lofgren said.
Mr. Smith. If the gentleman would yield, I did hear what
the gentlewoman from--reclaiming my time--what the gentlewoman
from California said. but I was not persuaded that that was a
problem of such significance that it overrode the advantages of
having one district court not only issue----
Mr. Watt. Would my gentleman friend from Texas yield?
Mr. Smith. Yes, I'm sorry, please.
Mr. Watt. I thank the gentleman for yielding again. Those
are two separate issues, and the second one I understand more
than I understand the first. Obviously, there is a problem
because this is a remote--or the possibility of having to
travel all the way across the country to deal with something.
This is not a grand jury situation. I'm not trying to get
people into dueling----
Mr. Smith. District courts?
Mr. Watt.--dueling district courts. I presume that judges
looking at the same evidence are going to reach the same
result, but, you know, right now we're making this convenient
for the Government, but not convenient for the citizen, and the
citizen in this case is not even the person that's suspect of
anything. In most cases it's a corporation that happens to be a
service provider.
Mr. Smith. Reclaiming my time, I'm not sure I share the
gentleman's confidence that district courts will not differ in
their findings or differ in their conclusions, but in any case,
I'll be happy to yield for the gentleman from Texas, Mr.
Gohmert----
Mr. Gohmert. Thank you.
Mr. Smith.--the balance of my time.
Mr. Gohmert. I appreciate my gentleman friend from Texas
hearing my voice way out here in the wilderness.
Listen, I've dealt with this issue, and I'll tell you what,
when you have a violent criminal that you issue a warrant on,
and you set a high bond like a million dollar bond--and I have
had this happen--he's picked up in some other jurisdiction. He
comes in, he makes a contrite and lovely appearance before that
trial judge, and that trial judge says, well, he seems like a
nice enough guy. He sets a low bond, and a violent criminal
gets away and does violence on other people. It is not a good
situation.
And from what I understand, this was originally argued at
length in the original PATRIOT Act, and that's why this wasn't
a part of it. In fact, this is the very kind of thing that will
allow somebody to go to a judge that doesn't know the history,
doesn't know what happened, and then issue a warrant in the
middle of the night to go kidnap a child at gunpoint, all
because he wasn't privy to all the information the original
trial judge had.
I think this is troublesome. I have seen it create problems
down the road simply because a well-meaning judge just doesn't
have all the facts. The original trial judge that issued the
warrant does, or he wouldn't have issued it, so I would urge
everyone to vote against this amendment.
Mr. Smith. Mr. Chairman, I thank the former judge from
Texas for his comments, and I'll yield back.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I think the only thing more
troublesome than the situations that have been alluded to would
be what would happen if this amendment is not agreed to. In a
grand jury you're at least doing one crime and you're looking
for evidence of that crime, so there's some natural limitation.
In this you can have--if you get served in California on a
warrant that is over broad and you have trouble complying with
it, you got a choice, you can either comply with it at great
hardship, or you can go to Virginia and argue about it.
Now, you got to bring yourself and your lawyer and
everybody else cross-country to argue the case. Why can't you
argue it right there somewhere in California? I would hope we
would agree to this. Otherwise, you essentially have no right
to contest a search warrant if you don't adopt this amendment.
Mr. Delahunt. Would the gentleman yield?
Mr. Scott. I'll yield.
Mr. Delahunt. In response to my friend from the wilderness,
I think he--and I read the amendment on its face, and it just
simply refers to warrants executed in districts. But this is
not an arrest warrant. What we're speaking to here is an
electronic search warrant, and I would ask the gentleman if
that might somehow influence his concerns that he so eloquently
expressed about that violent----
Mr. Gohmert. Would the gentleman yield?
Mr. Delahunt.--criminal down in Texas.
Mr. Gohmert. If the gentleman would yield?
Mr. Delahunt. I yield.
Mr. Gohmert. I take it by your silence, yes. The same
principles apply. The one that issued the warrants knows the
facts and knows them well enough to have found probable cause
to issue a warrant. Otherwise he's the one or she is the one
that found that it complied with the constitutional
requirements, and that is the principal court of jurisdiction.
And again, as I understand it, this was argued at length. The
same kind of principle would apply, let the judge that has the
principal jurisdiction rule on it. Thank you.
Mr. Delahunt. Reclaiming my time, the problem you've got
there----
Mr. Gohmert. I yield back.
Mr. Delahunt.--is that somebody's going to be
inconvenienced, and if you've got an overly broad warrant and
cannot possibly comply, you're in a fix because either you've
got to pluck yourself and your lawyer and all your files and
everything cross-country to schedule something that may get
unscheduled and rescheduled. You've got to come back another
time to argue it. If this isn't adopted, you essentially have
no effective right to contest a search warrant that may be
overly broad, may bankrupt your company to try to comply with
it. If you can't get it amended, you can't get it fixed, so
that maybe you can provide most of the information, they'd be
satisfied with that, you just got to go bankrupt or something.
I yield to the----
Mr. Issa. I thank the gentleman. And briefly, I'd like to
say that although this may be well-intentioned, that there is a
flaw even in the amendment, and that is that under the current
law, for example, if you do business on the Internet, we don't
have to go to your home jurisdiction. In fact, if you do
business in the Internet and there's a portal that end up in my
district, I can file in my district.
So when you start saying it would be overly burdensome, the
best example is in fact when we're executing a search warrant
on Internet material, we should not have to go to San Jose
because the truth is, it's probably a Washington or an Alabama
or whatever investigation. So this doesn't fix the problem that
it says it fixes because we do often have corporations who in
fact do not have the right to go to their home jurisdiction and
say, ``I'm going to answer it here,'' because they're doing
business in Timbuktu, and as a result, they get served in
Timbuktu.
So I believe that this amendment is so overly broad that
even if we agreed with the principles--and I think Chairman
Smith has said why the entire amendment is flawed--I also think
that we need to look----
Ms. Lofgren. Would the gentleman yield?
Mr. Delahunt. Would the gentleman yield?
Mr. Watt. Reclaiming my time, and I yield to the gentlelady
from California.
Ms. Lofgren. This was discussed at some length. I mean not
tremendous length when we enacted the PATRIOT Act, and it is
for electronic evidence only. And really, the rationale
behind--to allow the Government to seek a warrant either where
the case was initiated or where the warrant was to be executed
to relieve the burden, the judicial burden on my district,
where all of the warrants were sought because they were all
being executed in Silicon Valley.
What is being proposed here is just the other side of that
coin. These are all large companies. These are not, you know,
Joe the ax murderer.
Chairman Sensenbrenner. The gentleman's time has expired.
Ms. Lofgren. Mr. Chairman, I ask to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. I can recall a handful of situations where the
ISPs, who are the recipients of these search warrants, have
taken the step of moving to quash. But the question in my mind
is why should we inconvenience the ISP on those occasions when
they move to quash the warrant that's been issued? We should at
least grant them the same discretion.
I don't think this is a huge deal, frankly, because I don't
think it happens that often, but I do think it's basic
fairness. I appreciate the comments made about, you know, bad
guys and robbers, but it really has absolutely nothing at all
to do with this section of the Act, and never did, nor does it
have anything to do with this amendment.
And I think this should be something where we could
actually agree. I mean we've disagreed on many things, but this
should be something where we could agree to make a modification
that is modest yet sensible, and I am at a loss other than we
just vote party line all the time, why we wouldn't agree on
this very sensible manner.
I don't know if Mr. Watt would like to make any additions,
or Mr Delahunt, who was asking to be recognized a minute ago.
Mr. Watt. I thank the gentlelady for yielding. I basically
have said what I have to say about this. I mean I think it's a
matter of fairness. It's not about protecting anybody who has
done anything criminal because the people who are the subjects
of these electronic warrants, search warrants, are really not
the terrorists, they just have the information. I just--I
thought this was going to be a real non-controversial amendment
myself, and I can't imagine why we are so bent out of shape
about this unless--I mean it is true that the Government now
has the right to select the forum in which it gets its
warrants, but I'm not even trying to give any advantage in the
limited, very limited number of cases where a service provider
is going to raise a question about a warrant. I'm not trying to
give any advantage to them other than the advantage of
convenience.
I'm assuming that a judge who looks at a certain set of
evidence in Virginia, a district court judge, is going to--the
judge in California is going to look at and decide the same
thing.
Ms. Lofgren. If I may reclaim my time.
Mr. Watt. I yield back.
Ms. Lofgren. I mean this was--you know, I said it was my
district. It wasn't just my district, but most of these
warrants are executed either in Northern Virginia or in Silicon
Valley, and this was proposed, really as my recollection is, by
the department, really for reasons of judicial economy to
eliminate the burden on those judicial districts, and this
doesn't increase the burden on those judicial districts, and I
think if you take a look at the Act itself, Section 220, as
well as 219, it becomes very clear what we have done and how
modest is this amendment.
Before yielding back I'd ask Mr. Delahunt if he wanted to
make his final comment?
Mr. Delahunt. I just, again, I would just echo what the
gentleman, the proponent of the amendment has said. I just
don't think it's a big deal. To me it's just a housekeeping
amendment that really closes the loop of what we did when we
passed the PATRIOT Act out of this Committee. It's the other
side of that. And it does come down to convenience as opposed
to putting the burden on--as opposed to putting the burden on
the respondent. But if there's some rational argument that can
be made for opposing it, I haven't heard it yet, and I would
hope that those who oppose it would reconsider.
With that I'll yield back.
Ms. Lofgren. And I'll yield back. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from North Carolina, Mr. Watt. Those
in favor will say aye.
And those opposed, no.
The noes appear to have it----
Mr. Watt. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. A recorded vote will be ordered.
Those in favor of the Watt amendment will, as your names are
called, answer aye, those opposed no, and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Oh, I'm sorry. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. Pass.
The Clerk. Ms. Sanchez, pass. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? Gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. Gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Gentlewoman from California, Ms.
Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 24 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. Chairman, I have three amendments at the
desk which I'd like to offer en bloc.
Chairman Sensenbrenner. The clerk will report the
amendments.
The Clerk. Amendments to H.R. 3199 offered by Mr. Schiff of
California.
Add at the end the following:
Sec. 9. Predicate offenses.
Section 2332b(g)(5)(B)(i) of Title 18, United States Code
is amended: 1) by inserting 2339d, relating to----
Mr. Schiff. Mr. Chairman, I'd request that the amendments
be deemed as read.
Chairman Sensenbrenner. Without objection, so ordered, and
without object, the amendments will be considered en bloc, and
the gentleman from California is recognized for 5 minutes.
[The amendments of Mr. Schiff follow:]
Mr. Schiff. Thank you, Mr. Chairman. I'll try to summarize
these very quickly. The first amendment amends the definition
of a Federal crime of terrorism. Section 808 of the PATRIOT Act
made a number of important changes to the definition of
terrorism to include sections of the criminal code which were
involved with terrorist offenses. Since the passage of the
PATRIOT bill there have been a number of new terrorism offenses
that should be made reference to and incorporated within the
definition of ``terrorism.'' This particular amendment would
add offenses related to military type training from a foreign
terrorist organization, and also offenses related to nuclear
and weapons of mass destruction threats. These additional
terrorism offenses were enacted via the 9/11 Commission bill.
A second amendment as part of the en bloc deals with civil
forfeiture and trafficking in WMD technology or material, and
this amends the PATRIOT bill to include trafficking in nuclear,
chem, bio or radiological weapons technology or material.
Section 320 of the PATRIOT bill amended Federal law to specify
that the proceeds of foreign crimes specifically related to
drug trafficking are subject to forfeiture in the United
States, and my amendment would extend this concept to include
trafficking in nuclear, chem, bio or radiological weapons
technology or material. It will allow us to go after the
proceeds of criminal rings like AQ Khan.
And finally, Mr. Chairman, I have an amendment to the
omnibus Crime Control Provisions which add a number of
provisions to the wiretap authority, which add additional
terrorism and serious offenses to ensure law enforcement has
the tools necessary to----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. First let me say I think the
gentleman has made three very constructive additions, and I am
prepared to accept these amendments en bloc. I would ask,
however, unanimous consent that the staff be authorized to make
a technical correction to the third amendment offered by the
gentleman from California, to put the sections that he had
cited in the proper numerical order so that they appear at the
proper place in the statute.
Mr. Schiff. I thank the Chairman.
Chairman Sensenbrenner. Without objection, the modification
is agreed to. I thank the gentleman for yielding.
Mr. Schiff. Mr. Chairman, I'd be delighted to yield back
the balance of my time.
Chairman Sensenbrenner. The question is on the amendments--
--
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. Gentlewoman from California.
Ms. Lofgren. I would like to ask a question of Mr. Schiff.
Chairman Sensenbrenner. The gentlewoman strikes the last
word----
Ms. Lofgren. I do.
Chairman Sensenbrenner.--and is recognized for 5 minutes
Ms. Lofgren. On your amendment No. 64, I'm seeking to
understand the impact of lines 6 and 7.
Mr. Schiff. Yes. Lines 6 and 7 refer to what's existing
already in the PATRIOT bill. It doesn't add that, but because
we're adding all the language after that, and the previous
language in lines 3, 4 and 5, says strike the beginning of that
section.
Ms. Lofgren. All right.
Mr. Schiff. So we're not adding----
Ms. Lofgren. Not adding anything.
Mr. Schiff. We're not adding the ``fraud and misuse of
visas, permits.'' That was already there. We're adding what
appears thereafter, violence at airports, biological agents and
toxins, nuclear and weapons of mass destruction threats, et
cetera.
Ms. Lofgren. So the renumbering argument I understand now,
and I thank the Chairman for recognizing me and yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendments offered by the gentleman from California, Mr.
Schiff, en bloc. Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendments en bloc are agreed to.
Are there further amendments? The gentlewoman from
California, Ms. Lofgren.
Ms. Lofgren. I have an amendment actually coming to the
desk.
Chairman Sensenbrenner. The clerk will report the amendment
once it is received.
The Clerk. Amendment to H.R. 3199 offered by Ms. Lofgren of
California.
At the end of the bill add the following:
Section ___. Clarification of habeas corpus
No act of Congress passed since the terrorist attacks of 9/
11, including USA PATRIOT Act, shall be construed to limit or
suspend the writ of habeas corpus.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
[The amendment of Ms. Lofgren follows:]
Ms. Lofgren. Mr. Chairman, the writ of habeas corpus in
Article I, Section 9 says that the privilege of the writ of
habeas corpus shall not be suspended unless when in cases of
rebellion or invasion the public safety may require it.
As the Chairman will recall, I'm sure, the very first
unpublic draft of the United States PATRIOT Act sent over from
the Department of Justice contained a chapter titled
``Suspension of habeas corpus,'' and as we all know, the
Congress declined to--with the Chairman's leadership--to accept
that provision, Yet many Americans are concerned that what has
been done since 9/11 has, through back-door methods, in
essence, accomplished that same result.
For example, the administration has claimed the power to
declare suspected terrorists, including American citizens,
``enemy combatants'' and to hold them indefinitely without
access to U.S. courts. Last year the Supreme Court disagreed
and recognized that detainees have the right to file habeas
writs in Federal courts. Unfortunately, the Court left many
details unanswered, and so many, including Mr. Jose Padilla, an
American citizen, are still being held indefinitely without
charge.
In addition, it appears that the Department of Justice has
used the material witness statute as a means to hold suspects
without charge, which I addressed during the discussion of a
previous amendment.
Habeas corpus is one of the foundations of American
freedom. It was first enshrined in the Magna Carta 700 years
ago and forms a key foundation for the U.S. Constitution. It
prevents the Government from arresting a person and holding
them indefinitely without charge.
Now, I realize that these issues are not squarely within
the Act itself, but I'm sure the members of the Committee will
recall the dialogue that I had with the witness from the
Justice Department on this very issue. And I hope you'll recall
that when I asked the Justice Department, the Assistant
Attorney General, whether or not he agreed that including a
reaffirmation of the writ of habeas corpus in whatever we did
in the PATRIOT Act would be a good idea, he did not disagree.
I hope that we can clarify that nothing the Congress has
done has suspended the writ of habeas corpus. I think it may
make--some have guessed otherwise. I think it would clarify
that point in a way that would be very healthy for our Republic
and very useful for the Judiciary, and I hope that this is
something that we can do unanimously, reaffirming the great
writ that has kept America free for so many years.
And with that, I would yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I rise in opposition to this
amendment.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Lungren. I mean this is so broad, no act of Congress
passed since the terrorist act of 9/11 should be construed to
limit or suspend the writ of habeas corpus. We have a bill that
is being entertained by this Committee right now talking about
streamlining appellate procedures which affects the writ of
habeas corpus, and some would suggest it gets rid of some of
the excesses of habeas corpus that are, I would suggest, being
observed in certain parts of the country, particularly in the
Ninth Circuit at the present time. I just think----
Ms. Lofgren. Would the gentleman yield?
Mr. Lungren. Yes, I'll be happy to yield.
Ms. Lofgren. I would ask unanimous consent to remove the
words ``limit or'' from the amendment.
Mr. Lungren. I appreciate that. If the Chairman recognizes
you to----
Mr. Chairman, she's asking unanimous consent to remove the
words----
Ms. Lofgren. ``Limit or.''
Mr. Lungren. ``Limit or.''
Chairman Sensenbrenner. Without objection, the modification
is agreed to.
Mr. Lungren. And with that, I would remove my objection.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from California, Ms.
Lungren--Ms. Lofgren. [Laughter.]
I'm falling into the trap too.
Those in favor will say aye.
Opposed no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments? The gentleman from
California, Mr. Schiff.
Mr. Schiff. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199 offered by Mr. Schiff of
California.
Page 6, line 7, strike ``(5)'' and insert ``(6)''.
Page 6, after line 6, insert the following new paragraph:
(5)(A) In the case of an order requiring the production of
tangible things from a library or bookstore or medical records
that contain personally identifiable information and subject to
subparagraph (B), at the conclusion of an----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentleman from California is
recognized for 5 minutes.
[The amendment of Mr. Schiff follows:]
Mr. Schiff. Thank you, Mr. Chairman. This amendment is
offered by myself and also by Ms. Waters.
This applies to Section 215 and again applies specifically
to those records that Americans have the most concern about
preserving their privacy, that is, library records or book
store records or medical records. And when this amendment very
simply does, is it says that--and it's very narrowly drawn--
that the--well, let me back up 1 second.
The debate on the library records, I think has been a very
difficult one when you get into the weeds on what's involved.
When you compare the grand jury process to the FISA process, in
the grand jury process you can get a grand jury subpoena for
library records or any other kind of record without prior court
approval. However, there's no prohibition on telling the
subject of the grand jury subpoena that their records have been
subpoenaed. In the FISA context you have prior court approval,
which is positive, but at the same time you have a statutory
prohibition on ever disclosing the FISA order to the subject of
the order, and therefore, there's really no check on the
issuance of that order.
What my amendment does is it says that first the existing
prohibition on disclosure of a FISA order for a medical record
or a library record would be lifted after the investigation has
been concluded; second, this would only apply to U.S. citizens.
So this does not extend to foreign nationals, or as Ms. Lofgren
pointed out to me earlier, even lawful permanent residents. It
only applies to U.S. citizens' library records, U.S. citizens'
book store records, and U.S. citizens' medical records.
And third, the FBI would have the ability to petition the
court for good cause shown, the FISA Court, that the non-
disclosure requirement should not be lifted in that particular
case.
So this couldn't be drawn more narrowly. It only applies to
library records, book store records and medical records. It
only applies after the investigation has concluded, and it has
the additional safety valve of allowing the FBI to go to the
FISA Court, and for good cause shown, continue to maintain the
non-disclosure order. So I can't imagine how it could be drawn
more narrowly. At the same time I think it protects American
citizens in their expectation of privacy with their medical
records and their library records, and I hope that it may be
the one amendment in this area that the majority will find
acceptable.
I would be happy to yield back the balance of my time.
Mr. Goodlatte. [Presiding] Who seeks time?
The gentlewoman from Florida is recognized for 5 minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. I support
the gentleman from California's amendment, and just wanted to
make a suggestion, depending on the will of the Committee, not
necessarily on this amendment, but on the one which he withdrew
earlier as well, which is the same issue, that the Director of
the Federal Bureau of Investigation may or may not be the
appropriate person to do the review because if you had the
Attorney General do that review, as well as in the amendment
earlier today, you would have both a law enforcement agent
doing the request for the tangible things like library books or
medical records, and the review by the Attorney General would
be done by a prosecutor.
Simply because there is no judicial review of this whole
process, it would be, I think, helpful to have both the
prosecutor and the law enforcement agent be part of that
process. That's just my thoughts.
And I yield back.
Mr. Goodlatte. Gentlewoman yields back. The gentleman from
California is recognized for 5 minutes.
Mr. Lungren. Strike the last word. If I could ask the
gentleman from California, the author of this bill, a couple of
questions.
You say at the conclusion of the investigation described in
Subsection (A) of the individual, if there are a series of
investigations, this being just one of them, but information
gained in this go to the other investigation which is not yet
completed, would they be required to disclose without going to
the court?
Mr. Schiff. No. Will the gentleman yield?
Mr. Lungren. Sure.
Mr. Schiff. No, there's nothing that mandates disclosure
here. What it says is that we remove the legal prohibition of
disclosure so that--when you issue a grand jury subpoena now
for a business record, a library record or whatnot, there's no
mandate that the library disclose the subpoena request or that
the business disclose it. In fact, they are heavily discouraged
from doing it. But they're not legally prohibited from doing
it, and this would remove the legal prohibition.
In the circumstance you mentioned, either, (A) the
investigation would be deemed to be ongoing because there's a
related investigation ongoing, or (B) if there were any
question about it and the investigative agency, the FBI, felt
that by disclosing to the American citizen that their library
record had been requested, would it somehow impede the related
investigation, they could go to court and that would be good
cause for the court to extend the non-disclosure. So in the
circumstances you described, the Government would still be able
to protect its investigation.
Mr. Lungren. So the gentleman would remove the current
state of the law which obviously promotes non-disclosure. The
assumption--the presumption that non-disclosure is necessary in
these foreign intelligence surveillance cases.
Mr. Schiff. If the gentleman would yield, in very narrow
circumstances, first of all, vis-a-vis only U.S. citizens;
second, under the whole range of records under 215, only vis-a-
vis library, book store and medical records; and third, only
where the Government decides that they can't show good cause--
--
Mr. Lungren. Right, but the premise is for the very use of
this section is that it's a case involving international
terrorism or clandestine intelligence activity, and what you're
saying is if a U.S. citizen is involved in that, that
disclosure takes place.
Mr. Schiff. Not that disclosure takes place, but that the
prohibition on disclosure----
Mr. Lungren. Prohibition against non-disclosure----
Mr. Schiff. Prohibition against non-disclosure is removed,
that there's an affirmative obligation of the Government to
tell the Court why it's necessary to continue non-disclosure to
an American citizen that their library record was requested.
Mr. Lungren. And so the gentleman's argument is that in an
international terrorism case or clandestine intelligence
activity, we do make a distinction under your amendment between
a U.S. citizen and non U.S. citizen?
Mr. Schiff. We do. I mean there are foreign nationals in
the United States who are here very legitimately and may be
here very illegitimately that we wouldn't want to protect this
way, but what really is the broader picture I think is that the
American people are concerned were their library records being
subject of review. And I think that we can satisfy all of the
legitimate law enforcement interests and also protect the civil
liberties interests of Americans to know that their reading
habits aren't being scrutinized, and that there isn't a
prohibition on disclosure unless good cause has been shown for
why that should continue after the investigation is concluded.
And again, we put in so many safeguards here, American
citizen, only certain records, only after investigation is
done, and only when the Government chooses not to go to court
or can't show good cause to continue the non-disclosure order.
Mr. King. Would the gentleman yield?
Mr. Schiff. Yes.
Mr. King. I thank the gentleman. I'm reading here from the
amendment, and lines 6, 7 and 8, of an individual who is a
citizen of the United States, the non-disclosure requirements
of this section shall cease to apply.
Does your amendment, Mr. Schiff, presume that terrorists
will not be U.S. citizens in the fashion of the bombers in
London that were British citizens? How does that play out
within this--as you envision this language?
Mr. Schiff. Will the gentleman yield?
Mr. King. Yes.
Mr. Schiff. I would assume that the circumstances in which
a U.S. citizen is the subject of a FISA order are far the
exception and not the rule because the FISA rules are, No. 1,
directed at agents of foreign governments. But, no, it doesn't
assume that it will never be the case that an American might be
involved in terrorism, but it does say that where there is an
American who is the subject of an order to produce their
library record or the medical record or records which it's hard
to imagine things being more personal and private, that at the
conclusion of the investigation, when the investigation is done
and the Government no longer has any good cause to refrain from
informing the person, presumably because the investigation
either revealed that they were not properly the suspect or
they've already been convicted of an offence, then disclosure
is not legally prohibited.
The reason why I think this is important is that unlike the
grand jury process, there is no safeguard of ultimate
notification in this, and even with this very limited
amendment, the Director of the FBI and his designee can go and
ask for a continuing non-disclosure order.
Mr. King. Would the gentleman yield again?
Mr. Schiff. Yes.
Mr. King. I thank the gentleman. But wouldn't this put a
non-citizen, someone who has either an unlawful presence or a
lawful presence in the United States at a disadvantage as
opposed to a United States citizen with regard to this type of
investigation, and wouldn't that be a distinction that
generally one wouldn't support as we approach this level of
jurisprudence on these cases?
Mr. Schiff. You know, I think that we can and we do
distinguish between U.S. residents, citizens and lawful
residents, and foreign nationals. They have different
expectations of privacy. I frankly, if the gentleman wants to
suggest it, would be happy to include lawful residence in
addition to U.S. citizens. I think that makes sense.
But I think it also is perfectly appropriate to distinguish
levels of privacy expectation of foreign nationals in the
country and of American citizens and lawful residents.
Mr. King. I thank the gentleman.
Mr. Franks. Would the gentleman yield?
Mr. Goodlatte. The gentleman from California, Mr. Lungren,
controls the time.
Mr. Lungren. I'm trying to reclaim it, but I will yield to
whoever is asking for it right now.
[Laughter.]
Mr. Franks. Thank you, Mr. Lungren.
I wanted to ask, in line 2, the library or book store, that
seems to be potentially a fairly broad possibility. Would that
include all libraries, book stores? Would it include things
like 7-11 perhaps? I mean are there any specific definitions
there? And with the same respect to personally identifiable
information, what would be included in that and how would you
specify that?
Mr. Schiff. If the gentleman will yield.
Mr. Franks. I will yield.
Mr. Schiff. If I were the FISA Court I wouldn't interpret
7-11 as a book store unless they had an awfully good magazine
rack, and even then. So I would not interpret it that way, but
again, when you look at the scope of business records that are
subject to the FISA Court, which is unlimited, we're talking
about a very narrow subsection which also is that narrow
subsection which is of most concern to the American people.
It's not an arbitrary choice, and it's because these records
are of such concern to the American people, that I think
they're deserving of greater protection.
Chairman Sensenbrenner. [Presiding] The time of the
gentleman has expired.
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
Mr. Delahunt. I will yield to my friend from California,
the proponent of the amendment. I think he alluded to it, but I
think we've got to put some context here. I think we all
probably sense that among the American people there is a
profound concern about what Government is doing, what is
happening. And I think it's understandable that we have
recalibrated, if you will, the tensions between national
security on one hand and individual liberties and privacy on
another. But at the end of the day, in a healthy viable
democracy, openness and transparency and respect for privacy is
what it's about in terms of securing the confidence of the
people that there is a viable functioning democracy.
I think the gentleman's amendment is a gesture towards
recalibrating, if you will, those interests, particularly
privacy interests, and the interest of transparency and
understanding what the Government is doing. In a larger sense
it's a gesture towards moving that back in a direction that I
think is important.
With that, I'll yield to my friend from California. And I
applaud him, and I think this is an amendment that is a
gesture.
Mr. Schiff. I thank the gentleman for yielding, and I think
what this amendment really ought to speak to the American
people whose concern is that the Government might be looking or
interested in their reading habits or their medical history,
that I hope we're going to say to them, look, if the Government
has a legitimate reason to request of the FISA Court your
library record or your medical record, and you're an American
citizen, when the investigation is done, if there's no good
cause not to inform you of it, we will inform you of it.
And I would hope the America people at a minimum have a
right to expect that, that when the investigation is done, if
they're exonerate or they're incarcerated, whatever the case
may be, and there's no further impact on the investigation,
there can be no good cause shown, that there shouldn't be a
legal bar of a library to tell their patron that their record
was requested. I hope we're not going to say to the American
people that even in these narrow circumstances we're not
prepared to protect your privacy or provide any check.
So I haven't heard opposition yet from my colleagues.
Mr. Lungren. Would the gentleman yield?
Mr. Schiff. I hear the struggle to find a reason to oppose,
but don't work so hard.
Mr. Lungren. Well, you keep talking and----
Mr. Schiff. I'll stop.
Mr. Delahunt. Reclaiming my time, I would just note that
the Director of the Information Security Oversight Officer for
the Executive Branch has suggested that we are on a record pace
in terms of classification. We are putting a veil over the
operations of Government in this country, and we've got to
start to begin to reverse that trend. And again, this is noting
of great significance, with all due respect, in the larger
scheme of things. But I think it's a demonstration to the
American people that we recognize that there is a balance
between national security and the values that we actually are
fighting for in terms of dealing with the issues of terrorism.
With that I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from California, Mr. Schiff. Those in
favor will say aye.
Opposed, no.
The ayes appear to have it.
Mr. Smith. We would like a recorded vote.
Chairman Sensenbrenner. The gentleman from Texas asked for
a recorded vote. A recorded vote is ordered. Those in favor
will, as your names are called, answer aye, those opposed no,
and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
[No response.]
The Clerk. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? Gentleman from Indiana, Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. Gentleman from Florida, Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 20 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Florida, Mr.
Wexler?
Mr. Wexler. Thank you, Mr. Chairman. I will be quick. I
just would like to follow up on the amendment that we spoke
about.
Chairman Sensenbrenner. Is the gentleman offering an
amendment or moving to strike the last word?
Mr. Wexler. Yes, amendment.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Wexler. The same amendment that was offered before.
The Clerk. Amendment to H.R. 3199 offered by Mr. Wexler of
Florida.
At the end of the bill add the following:
Section ___. Preventing the revelation----
Mr. Wexler. Move that we consider it as read, Mr. Chairman.
Chairman Sensenbrenner. Without objection, so ordered. The
gentleman is recognized for 5 minutes.
[The amendment of Mr. Wexler follows:]
Mr. Wexler. Mr. Chairman, I will be brief. We concluded the
previous debate. The gentleman from Iowa had suggested that the
language that was included in the amendment was either too
broad or nebulous. There was a discussion as to whether similar
language was actually contained in the U.S. Code, particularly
in the criminal sections. In fact, there is precisely the same
language in the espionage section, and there are several
sections that contain almost exactly the precise language.
Mr. Chairman, I thought your remarks at the end of the
debate were exactly on point. This amendment would not in any
way affect the investigation of or the conclusion or
ramifications of the investigation regarding Mr. Rove. The
issue is really quite simple. The issue is current law, on its
face, criminalizes the knowing disclosure of classified
information that identifies a covert agent.
What this amendment would adopt is to go a step further in
the protection of our CIA and intelligence agencies, to simply
provide in addition to that standard, that if a person provides
information pertaining to the identity of an undercover
intelligence officer, agent, informant, or source, that the
person has or should have reason to believe would be sufficient
to identify that person, then it would be actionable under this
section of the PATRIOT Act.
And I will conclude with that, Mr. Chairman, and ask that
we adopt this language to support the undercover work that our
agents, our patriotic agents are doing.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Wexler. Yes.
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
Mr. King. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. I thank the gentleman, and as I understand this
agreement here before this Committee--and I had made the
statement that the language, ``a person has or should have
reason to believe,'' didn't exist elsewhere in the code. And my
information that comes from our staff, that has twice now done
a word search through the entire U.S. Code, it comes back to--
this is my information. There are multiple uses of ``has reason
to believe'' but there are no occurrences of ``should have
reason to believe'' or ``has or should have reason to
believe.'' So I would ask the gentleman to please produce that
language. If I am proven incorrect, I am certainly happy to
make that apology, and I would hope the gentleman would----
Chairman Sensenbrenner. Will the gentleman from Iowa yield?
Mr. King. I would yield.
Chairman Sensenbrenner. During the interim since the
gentleman from Florida offered this amendment previously, we
had the Office of Law Revision Counsel do a U.S. Code search
using the words ``should have reason to believe.'' The result
of the search is zero documents found, zero returned. So the
language that the gentleman is proposing to insert appears
nowhere else in the U.S. Code according to the Office of Law
Revision Counsel. I yield back to the gentleman from Iowa.
Mr. King. I thank the gentleman. I rest my case.
Mr. Berman. Would the gentleman yield further?
Mr. King. I would yield.
Mr. Berman. Just like an attorney talking off the top of
his head, I cited a specific statute that I had bee involved
with back in the mid '80's. Your side actually listened to what
I said and checked it out and found out that the section I was
referring to was repealed in 1988. How I let that happen, I
don't know, but----
[Laughter.]
Mr. Berman. I probably wasn't anticipating this day at the
time.
Mr. Wexler. Would the gentleman yield?
Mr. King. I have a--reclaiming my time, and I will in a
moment, Mr. Wexler. But I'd like to point out that the
gentleman, Mr. Berman, has a memory that goes back specifically
to specific language in 1988, and I suspect he has some current
knowledge of the code as well that hasn't been divulged yet
today.
And I'd yield to the gentleman from Florida.
Mr. Wexler. Not to belabor the point, there are several
references in the statutes with respect to ``has reason to
believe.'' If we're arguing over ``has'' or ``have,'' that's
fine. It really is not relevant to the issue before the
Committee. And as a point, Mr. Berman is exactly correct, but
ironically, the language that was adopted in the amendment, as
Mr. Berman suggested, I would respectfully suggest is even more
nebulous than the original language where it talks about if a
person is aware of a high probability of the existence of such
circumstance. That's actually current law.
So all I'm trying to insert is language, as we have
discussed, ``have reason to believe,'' ``has reason to
believe,'' all of that doesn't get to the issue. The issue is,
if a person provides information which that person reasonably
would believe would disclose the identity of a covert agent, do
you think it ought to be actionable, or do you think it ought
to be just okay?
Mr. King. Reclaiming my time. My statement was that the
language, ``should have reason to believe'' is vague, it's
nebulous, and it puts an extra level of responsibility on an
individual, and it might go so far as to say that they should
have gone and done research, gotten an education, investigated.
I think the language is too broad. That was my issue then. And
the gentleman from Florida, I would expect, given the
agreement, that he would offer this, if that language wasn't
correct, finding out that this language exists nowhere in the
code, I would hope the gentleman would withdraw his amendment.
Mr. Wexler. I would request unanimous consent--it does
exist once. But that's not the argument. I would be happy to
ask for unanimous consent to conform with the has reasoned to
believe rather than have reason to believe, which, if I
understand it correctly, is presented in the statutes on many
occasions. Be happy to do that.
Chairman Sensenbrenner. Is there objection to the unanimous
consent? Objection is heard.
The question is on agreeing to the Wexler Amendment. Those
in favor will say aye. Opposed, no.
Noes appear to have it. The noes have it, and the amendment
is not agreed to.
For what purpose does the gentleman from Indiana, Mr.
Hostettler seek recognition.
Mr. Hostettler. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr.
Hostettler. Nothing in this bill shall be construed as
repealing or modifying any provision contained in Public Law
109-72.
[The amendment of Mr. Hostettler follows:]
Chairman Sensenbrenner. The gentleman from Indiana is
recognized for 5 minutes.
Mr. Hostettler. I thank the Chairman. Mr. Chairman, this
amendment would simply clarify and actually remove a
probability that an amendment offered earlier and accepted by
the Committee by Ms. Lofgren would not be able to repeal a
provision that was passed earlier this year in the Real-ID Act
that was authored by Rules Chairman David Dreier that would
prevent criminal aliens from delaying their deportations
through excessive appeals.
My amendment would make sure that her amendment would not
be so construed to effectively repeal the Dreier Amendment.
Criminal aliens should not get two bites of the apple, and the
Real-ID Act provided their appeals in the U.S. Circuit Courts
and not in U.S. District Courts with regard to a final order of
removal and it would not allow them to go initially to the
District Courts and then to circuit courts, but would rather
require them to go immediately to the circuit courts. And with
that, I yield back the balance of my time.
Mr. Berman. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. One, is it too late for me to reserve a point
of order?
Chairman Sensenbrenner. Yes, it is. The gentleman has--from
Indiana has already been recognized.
Mr. Berman. Yeah. I didn't--I mean I didn't see the
amendment.
Chairman Sensenbrenner. The amendment was read in full.
Mr. Berman. But if I will read this amendment, and you tell
me what it's about. Nothing in this law shall be construed as
repealing or modifying any provision contained in Public Law
109-72.
I may remember something that was in the law in 1980, but I
don't remember it by the number of the bill.
Chairman Sensenbrenner. If the gentleman will yield. That
is the Iraq Supplemental Appropriation bill.
Mr. Berman. Oh, no. Based on the description of the
gentleman in describing his amendment, I understand the
amendment. Let me ask for an advisory opinion.
Do you give advisory opinions?
Chairman Sensenbrenner. The chair is not authorized to do
so.
Mr. Berman. Would provisions that affect the immigration
law that were not germane to this bill now become germane to
this bill if this amendment were to pass?
Chairman Sensenbrenner. The chair is not in the business of
providing advisory opinions.
Mr. Berman. How about speculative musings?
[Laughter.]
Chairman Sensenbrenner. The chair plays by the rules, and I
don't see any section of the Rules of the House or of the
Committee with the heading speculation.
Mr. Berman. Could, on my time, the gentleman once again
describe exactly what provision of the law so I can prepare the
many amendments I think would be good on the issue of
immigration.
Mr. Hostettler. If the gentleman will yield?
Mr. Berman. And exactly know where I'll have germane
provision?
Mr. Hostettler. If the gentleman would yield?
Mr. Berman. Yes. Oh, sure.
Mr. Hostettler. To the extent that the amendment offered by
Ms. Lofgren affected and was allowed to be offered to affect
immigration law, my amendment would likewise potentially affect
immigration law.
Mr. Berman. Ms. Lofgren offered an amendment on suspension
of writ of habeas corpus.
Mr. Hostettler. And my amendment says that nothing shall be
construed as repealing or modifying any provision contained in
Public Law 109-72.
Mr. Berman. Well, I guess we have to bring a case or
controversy before the Committee. And thank you.
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. Not having the Iraq appropriations bill handy,
I will rely on my memory, but there was concern, at least on my
part, when that measure was considered that there was an
impingement on the writ of habeas corpus.
But I don't think there was a suspension of habeas corpus.
And I think this goes to the point made by my colleague from
California, Mr. Lungren, earlier, which relates to the ability
of the Congress to prescribe procedural limitations on the
exercise of the writ of habeas corpus that falls short of the
action that the Congress needs to take in Article I, Section 9,
to suspend the writ of habeas corpus only in cases of rebellion
or invasion when the public safety may require it.
So unless the gentleman from Indiana is suggesting that the
Congress has suspended habeas corpus in its prior action, I
would suggest that this amendment should be rejected.
And I really do think that, you know, although this was
adopted because no one wants to say that we're suspending
habeas corpus, there is a very serious issue here, and the--Mr.
Chairman, the Committee is not in order.
Chairman Sensenbrenner. The gentlewoman is correct. The
Committee will be in order. Conversations will cease.
Ms. Lofgren. Thank you, Mr. Chairman. I do think that when
we are discussing the suspension of the writ of habeas corpus,
we should pay attention. And Mr. Hostettler seems to be
suggesting, by his amendment, that, in fact, the Congress did
act, as only the Congress may, as we learned from President
Lincoln's abortive attempt to suspend the writ through
executive order, that the Congress has acted in the Iraq
appropriations bill, to suspend the writ of habeas corpus.
I think that is not the case, but if this amendment is
passed, I think it affirms that, in fact, the Congress did
suspend the writ of habeas corpus, unknowingly I would assume
on the part of some.
So I think that this is not a harmless amendment. It really
has great import for the actions and of the Congress, and as a
precedent for the nation. As we know, the Congress has never,
in the entire history of the United States, acted to suspend
the writ of habeas corpus. And I would argue that if, in fact,
Mr. Hostettler is suggesting we did so in Public Law 109-72
that we have not met the predicate that is outlined in Article
I, Section 9 because we are not in the situation of rebellion
or invasion that is required--that the Congress is required to
find before deciding that public safety requires the suspension
of the writ.
So I would--I think this is very serious business. I
strongly urge the Committee to reject Mr. Hostettler's
amendment, and I hope that all of us can go home to our
districts this weekend and let them know that we have not, for
the first time in the proud history of the nation, acted to
suspend the great writ in this Congress.
And with that, I would yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler?
Mr. Hostettler. Mr. Chairman, I withdraw my amendment and I
move to reconsider the amendment offered by Ms. Lofgren.
Chairman Sensenbrenner. The question is shall the vote by
which the Lofgren Amendment was agreed to be reconsidered.
Those in favor will say aye. Opposed, no.
The noes appear to have it.
A rollcall will be ordered.
The question is shall the vote by which the Lofgren
Amendment was agreed to be reconsidered? Those in favor will as
your names are called answer aye. Those opposed, no.
Mr. Nadler. Mr. Chairman, parliamentary inquiry.
Chairman Sensenbrenner. The chair has already put the
question to the clerk to call the roll.
Mr. Nadler. Question on the question.
Chairman Sensenbrenner. It went--once the question is put,
then the rollcall begins.
Mr. Nadler. Could I ask which amendment we're talking
about? That's all I want to know.
Chairman Sensenbrenner. This the Lofgren Amendment relative
to habeas corpus; is the one the gentleman made his motion to
reconsider. Those in favor of reconsidering the vote by which
the amendment was agreed to will as your names are called
answer aye. Those opposed, no, and the clerk will call the
role.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Inglis?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
Mr. Berman. No. .
The Clerk. Mr. Berman, no. Mr. Boucher?
Mr. Boucher. No.
The Clerk. Mr. Boucher, no. Mr. Nadler?
Mr. Nadler. No..
The Clerk. Mr. Nadler, no.. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. The gentleman from Illinois, Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye.
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 23 ayes and 15 noes.
Chairman Sensenbrenner. And the motion to reconsider is
agreed to. The question now occurs on agreeing to the amendment
offered by the gentlewoman from California, Ms. Lofgren,
relative to habeas corpus.
Those in favor will say aye. Opposed, no?
The noes appear to have it. The noes have it.
Ms. Lofgren. Recorded vote please, Mr. Chairman.
Chairman Sensenbrenner. Recorded vote will be ordered.
Those in favor of the Lofgren Amendment will as your names are
called answer aye. Those opposed, no, and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No .
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye. Mr. Nadler?
Mr. Nadler. Aye..
The Clerk. Mr. Nadler, aye.. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. The gentleman from California, Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? Are there further amendments? The
gentleman from California, Mr. Schiff.
Mr. Schiff. Mr. Chairman, I have an amendment numbered 82
at the desk.
Chairman Sensenbrenner. The clerk will report amendment
number 82.
The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of
California. At the end of the bill, add the following new
section: Section. Obligation of All Amounts in Crime Victims
Funds. Section 1402 of the Victims of Crime Act of 1984, 42
U.S.C. 10601, is amended by adding at the end the following----
Mr. Schiff. Mr. Chairman, I'd request that the amendment be
deemed as read.
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. Well, a point of order is reserved
by the gentleman from Texas. Without objection, the amendment
is considered as read, subject to the point of order reserved,
and the gentleman from California is recognized for 5 minutes.
[The amendment of Mr. Schiff follows:]
Mr. Schiff. I thank the Chairman. Section 621 of the
PATRIOT Act allow the Department of Justice to establish a $50
million anti-terrorism emergency reserve for supplemental
grants to compensate and assist victims of terrorism or mass
violence.
It also removed the otherwise applicable caps on the
amounts transferred to the Victims of Crime Act Fund in
response to the terrorist acts of September 11th.
The Victims of Crime Act Fund is an important part of the
effort to aid those affected by terrorism and crime more
generally. The trust fund is composed of criminal fines,
forfeited bail bonds, penalty fees and special assessments
collected by U.S. Attorneys offices, courts, and the Federal
Bureau of Prisons.
These dollars come from Federal criminals. They do not come
from taxpayers.
Currently, this fund is the only Federal program that
provides support services to victims of all types of crimes.
The PATRIOT bill removed some of the caps, but not all of
the caps. This would remove the final remaining caps so that
more of this funding could be distributed. This is very similar
to a measure, bipartisan bill, introduced by Rob Simmons of
Connecticut that as 23 bipartisan co-sponsors. It is plainly
germane to the provisions that were amended in the PATRIOT bill
that lifted some of the caps. This lifts the remaining caps.
And it assures that more of this money will go out to victims
more expeditiously.
In the last couple years, the amount of money available to
states has been capped at $500 million despite collections of
over a billion dollars. So this I think is a completion of a
partial effort made in the PATRIOT bill that will more speedily
provide support to victims of other terrorist acts other than
September 11th, as well as the victims of crime generally. And
I'd be happy to yield back the balance of my time.
Chairman Sensenbrenner. Does the gentleman from Texas
insist on his point of order?
Mr. Smith. Mr. Chairman, I do insist on a point of order.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Smith. Mike is working here. Okay.
Mr. Chairman, the reason I feel that this particular
amendment is non-germane is simply because the subject, which
is crime victims fund, while it's in the PATRIOT Act, is not
under any of the provisions that we are considering here today.
And under Rule 16 of the House Rules, amendments that differ in
subject from the provisions under consideration are not
considered germane. And for that reason, I would insist on my
point of order.
Mr. Schiff. Mr. Chairman, may I be heard on the point of
order? Will the gentleman----
Chairman Sensenbrenner. The gentleman from California.
Mr. Schiff. This is a reauthorization of the PATRIOT bill.
And I know that the subject of the base bill pertains to
certain of the PATRIOT bill provisions, but this crime victims
fund was amended by the PATRIOT Act that we are in effect
reauthorizing today with this legislation.
This is the PATRIOT and Intelligence Reform Reauthorization
Act of 2005. And unless the gentleman has any objection to the
merits, considering it it amends the same section and in the
same fashion in terms of lifting caps. I think it is both
germane and good policy supported by 23 members of the House,
both Democrats and Republicans.
Chairman Sensenbrenner. The Chair is prepared to rule. Line
3 of the amendment offered by the gentleman from California,
Mr. Schiff, expressly states that the Victims of Crime Act of
1984 is amended by language in his amendment. The Victims of
Crime Act is not the subject matter of the bill before us that
relates to the PATRIOT Act, and, as a result, the gentleman
from Texas' point of order is sustained.
Are there other amendments? The gentleman from North
Carolina, Mr. Watt.
Mr. Watt. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Watt. Watt-Waters.
The Clerk. Amendment to H.R. 3199, offered by Mr. Watt and
Ms. Waters. Strike Subsection C of Section 8, and insert the
following: (C), non-disclosure. Section 501(d) of the Foreign
Intelligence Surveillance Act of 1978, 50 U.S.C. 1861(d) is----
Mr. Watt. Mr. Chairman, I ask unanimous consent the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered. The
gentleman is recognized for 5 minutes.
[The amendment of Mr. Watt and Ms. Waters follows:]
Mr. Watt. Thank you, Mr. Chairman. This amendment deals
with Section 215 of the PATRIOT Act, which the Chairman's mark
improves, and we're trying to improve it further. Section 215
expanded the FBI's authority to obtain business records,
including records from libraries and the bookstores under the
Foreign Intelligence Surveillance Act.
For example, the Washington Post reported that the FBI
agents--that FBI agents asked libraries for a list of everyone
who checked out a book on Osama bin-Laden. Any person, any
child simply trying to educate themselves about the attacks of
September 11 could become a target of such an inquiry. Not only
may American citizens become unsuspecting targets of a Section
215 order, those receiving the order, including bookstores and
libraries, are required to comply and may not disclose the
specifics or contents of the order.
The Chairman's bill makes some improvements. It amends
Section 215 to allow the recipient of the order to challenge
the order and clarifies that the recipient may consult with
counsel or those necessary to comply with the order, and sets
up a judicial review process and standards for issuing the
order. And Mr. Flake's amendment earlier dealt with that
consultation process, and improved on that.
My amendment would make additional and necessary
improvements by doing two additional things. First, it would
require the government to apply for a gag order establishing
why it is necessary for the recipient of an order and their
counsel to be prohibited from divulging the existence or
content of the order.
In instances where the government believes a gag order is
needed, the burden is placed where it should be--on the
government.
If the government can establish that disclosure of such
information might tip off possible terrorist suspects that they
are under investigation or if officers believe disclosure would
endanger someone, the government could apply for a gag order.
Second, my amendment places a 180-day time limit on the gag
order, which is renewable upon a showing that the order remains
necessary.
This would allow the government to obtain necessary
information to combat terrorism while providing transparency to
the public without jeopardizing national security.
Mr. Watt. The government should not and will not, if my
amendment is accepted, be able to completely shield from public
view its use of this powerful tool. The public must be able to
speak out when abuses occur and government secrecy all too
often leads to government abuse.
This amendment helps protect us from that kind of abuse. I
ask my colleagues to support the amendment, and I yield back
the balance of my time.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Pence, is recognized for 5 minutes.
Mr. Pence. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Pence. Thank you, Mr. Chairman. Mr. Chairman, I would
oppose the amendment offered by Mr. Watt and Ms. Waters.
While I support clarifying Section 215 to allow for a
recipient to disclose receipt of a Section 215 order to an
attorney, this provision inappropriately places an artificial
time limit on non-disclosure generally and places the burden on
the government to demonstrate that adverse effects will occur
upon disclosure when seeking an extension on that period.
Essentially, it flips the burden of proof in these cases. And
given the nature of national security investigations, the time
limit imposed by this amendment, I would argue, Chairman, is
with respect unrealistically short. Investigations of terrorist
organizations, for example, can last years, and requiring
notice of a disclosure under Section 215 would require
investigators essentially to tip off suspects, which could
enable them and their associates to go into hiding, to flee to
change their plans, and even accelerate their plots.
And I would yield back the balance of my time.
Chairman Sensenbrenner. The question is on the Watt
Amendment.
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Waters. I have co-authored this amendment because I
think it's very important. Among the things that have been
discussed, this amendment allows the recipient of a Section 215
order at least to consult with their lawyer, allowing the
recipients to speak to their lawyers, injects a vital due
process protection that is put in place that helps to ensure
that Section 215 authority is not abused without any mechanism
for recourse.
Mr. Chairman, in its current form, Section 215 of the
PATRIOT Act allows the FBI to seize and search any records on
any person they chose as long as they can show it is relevant
to a terrorism investigation.
Moreover, the recipient of Section 215 orders are subject
to an automatic gag order prohibiting them from telling anyone
about the search or seizure, including his or her lawyer.
Mr. Chairman, this automatic gag order prevents the
recipient of a Section 215 order from being able to question
the order at all. The recipient would have to risk criminal
sanctions to simply ask their lawyer whether the order is legal
or to be advised of their rights under the order.
This secrecy leaves Section 215 open for government abuse
and exploitation. For example, under Section 215 orders, the
government can secretly monitor a public library's computers
and be able to monitor who looks at what Internet sites, and
who has checked out specific books. This can all be conducted
without giving anybody notice that they're under surveillance.
This gives the government too much secret surveillance power
and eliminates any recourse for recipients of Section 215
orders.
Mr. Chairman, recipients of orders to produce records
should have a right to be able to consult with their lawyers to
be advised of their rights. And the government should not be
allowed to conduct investigations in secret, for secret
investigations all too often lead to government abuse.
Therefore, I would ask my colleagues to please support the
Watt-Waters Amendment, to place some commonsense restrictions
on Section 215, and I yield back the balance of my time.
Mr. Lungren. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I must not be reading the bill
that you introduced, because I note in the bill that you
introduced you have provided an opportunity for people to
disclose to their attorney, and I recall we adopted Mr. Flake's
amendment, which made it very specific as to what one could do
with respect to talking to their lawyer, not only to respond to
this, but also to challenge it. And if that's the proper
reading of Mr. Flake's amendment, I don't understand the
comments of the gentlelady from California that we just heard,
nor the purpose of the amendment that we have here, if the
purpose of the amendment we have now before us is to allow
people to disclose to their attorney, which on its face is in
the bill that's before us.
I yield back the balance of my time.
Mr. Conyers. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. I rise to support the amendment of the
gentleman from North Carolina. And I merely want to point out
that the objective of this bill is to make discretionary the
issuing of the gag order rather than it being automatically
applying under Section 215 to everybody, and so it wouldn't be
just a matter of whether the attorney could be consulted, but
it would cover libraries that can't let their patrons know that
the government has asked for information or a service provider
cannot let its customer know that his or her records have been
seized. And all we're saying in this amendment is not to place
a gag order automatically under 215; and that the government
would have to prove to then authorizing judge why a gag order
is necessary.
And it's in that sense that I think this is an excellent
amendment and I support it without question. I return my time.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. Let me just reiterate what Mr. Lungren
mentioned. My amendment sought to correct that, or just to
clarify within the law that you can consult an attorney not
just to respond to the case, but also to--with anything with
respect to the case. So I think it's fairly clear that the
subject of any action has the ability now to consult a lawyer.
Ms. Waters. Will the gentleman yield?
Mr. Flake. Yes.
Ms. Waters. I have just been handed the amendment by you,
Mr. Flake, which does refer to Section 501(d), and I suppose as
it is written, it would take care of my concerns and my
concerns that would linger with this would have to do simply
with the gag order.
Mr. Flake. Thank you.
Ms. Waters. Thank you very much.
Mr. Flake. I yield back.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, the point has been made that this
changes the presumption. The presumption is always that you
notify someone that you're searching their property. It's the
only way that you're going to have any sunshine on the
practice, whether or not you're in the right place, whether or
not you're overly broad. This would allow a gag order to remain
in effect for 180 days, and you can extend it indefinitely if
you can show cause. Otherwise, you have a permanent gag order
operating in secret. I think this is an appropriate balance,
and I would hope that we would adopt the amendment, and I yield
to the gentleman from North Carolina.
Mr Watt. Let me just make this point. I appreciate the
gentleman yielding. I think we all are probably getting tired
here because we're ceasing to listen to each other. The
amendment is about whether a gag order goes into effect without
anything or whether the government needs to get a court
authorization for a gag order. That's the only thing this
amendment is about.
The 180 days is there as a presumptive time, but if the
government needs more time than 180 days, all it has got to do
is go to the court and say that. The thing that's troubling
about this discussion is that the very people who are always--
have always expressed so much concern about the size and power
of the government now seem to be defending the exercise and
size and power of the government against individual citizens. I
thought--I really thought you all were really about downsizing
government and downsizing the power of government. We're not
trying to encourage terrorism. We're trying to create a balance
between the government--what the government can do without
saying anything to anybody, without notifying anybody. All
we're trying to do set up a counterbalance to something that is
unprecedented. This is unprecedented stuff that our government
could go in and look at our library records, and for you all to
sit here and defend the government against that kind of
intrusion, against even having to ask a court to evaluate
whether any kind of disclosure of that clandestine, quiet,
secretive action by the government should be exposed to the
light of day seems to me just to be unbelievable.
I'm beginning to think you all have lost your bearings
here. I--well, I thank the gentleman for yielding.
Mr. Scott. Mr. Chairman, reclaiming my time, I just to
remind everybody that the person whose privacy is being invaded
will never know that their privacy is being invaded, even if
secrecy is not necessary. All this amendment does is after 180
days let people know that the records were obtained and if
secrecy is necessary, let the government say that secrecy is
necessary.
I mean there's--I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from North Carolina, Mr. Watt.
Those in favor will say aye. Opposed, no.
Noes appear to have it. The noes----
Recorded vote will be ordered. Those in favor of the Watt
Amendment will as your names are called answer aye; those
opposed, no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No .
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye..
The Clerk. Mr. Nadler, aye.. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. The gentleman from Illinois, Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 13 aye and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Scott. Mr. Scott 34. It's page 9, line 11.
The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of
Virginia.
Page 9, line 11, strike the close quotation mark and the
second period. Page 9, after line 11, insert the following: 4)
a person who prevails on a challenge of the legality of an
order under this subsection is entitled to reasonable attorneys
fees, if any, incurred by the person in pursuing the challenge.
[The amendment of Mr. Scott follows:]
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, page 7,
line 16, purports to give a person who gets one of these orders
the right to challenge it. What this amendment would do is if
he can get through all of the legalities and actually wins, he
ought to be able to get his attorneys fees.
Now, let's remember what's going on here. You get a library
or somebody who gets an order to give up somebody's private
material, if they're going to contest it, if it is obviously
overly intrusive and not necessary, are they going to incur
$10,000, $20,000, $25,000 worth of legal expenses in order to
contest it for someone else when they can't tell the other
person that they're actually going to go through this on their
behalf or are they just going to comply with the order and give
up individual private information that shouldn't have been
asked for.
All this says if you can get through all of the legal mumbo
jumbo and actually win the case, if you have a slam dunk, that
you can afford to bring it.
Otherwise, the fact that you have the paper right to bring
the case is ridiculous because you can never do it because you
can't afford it.
And I would hope that we would at least allow attorneys
fees for that one in a million case that can actually bring a
case and win it so that they could--would actually bring the
case if the warrant was not necessary.
I yield back.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. I'd just like to
simply offer--it's a little vague, since--it says a person who
prevails on a challenge. Does that mean you win one challenge
and you lose a whole bunch. But I would offer this--and I can
only speak for myself personally--but if the gentleman from
Virginia and those across the aisle would agree to have a lose
or pay situation in tort cases, you've got my vote on your
amendment right here. And I'll yield back my time.
Mr. Scott. If the gentleman would yield?
Mr. Gohmert. Yeah. I've yielded back my time to the
Chairman.
Chairman Sensenbrenner. The question is on the Scott
Amendment. Those in favor will say aye. Opposed, no.
Noes appear to have it. The noes have----
Recorded vote will be ordered. Those in favor of the Scott
Amendment will as your names are called answer aye. Those
opposed, no. And the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No .
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye..
The Clerk. Mr. Nadler, aye.. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. The gentleman from California, Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. If not, the clerk will report.
The Clerk. Mr. Chairman, I have 14 ayes and 22 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments.
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Mr. Chairman, I have an amendment at the desk,
numbered 75.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff.
Amend Section 4 to read as follows: Section 4, Extension of
Sunset Provision relating to Individual Terrorists as Agents of
Foreign Powers. Subsection B of Section 6001 of the
Intelligence Reform and Terrorism Prevention Act----
[The amendment of Mr. Schiff follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. And the gentleman from California will be
recognized for 5 minutes.
Mr. Schiff. Mr. Chairman, this provision is fairly
straightforward. It provides a 3-year sunset for the so-called
lone wolf provision. And I want to explain why I think this is
different in kind than the earlier debate we've had on sunsets.
And that is the authority to go after loan wolves was just
recently enacted in December of last year, so we haven't had
the same kind of track record we have had with other sections
of the PATRIOT bill.
The loan wolf provision eliminates the requirement in FISA
that surveillance or searches be carried out only against
persons suspected of being agents of foreign powers or
terrorist organizations. It was an attempt to fix a loophole
potentially that would allow or preclude us from going after
lone terrorists where we couldn't show an affiliation to an
international terrorist group.
But there have been a number of concerns raised on this
Committee with the application of this provision to individuals
where you can't show a connection to a foreign government or an
international terrorist organization. In fact, a compromise
proposal based on language of Senator Feinstein was offered by
Mr. Berman in the 9/11 bill, which I believe was adopted with
bipartisan support in this Committee.
Rather than take that approach which was one of presuming
that a lone terrorist was acting in concert with international
organization or with another government, rather than take that
approach, it might be simpler and cleaner to provide a sunset
in a reasonable period of time--3 years--so that we'll have 4
years of experience in total so that we can evaluate and make
sure that this is only being applied in the right
circumstances.
It's not the intention of FISA to go after people who want
to commit acts of domestic terrorism, like blowing up a Federal
building over hostility to the government or to tax policy or
what not. And want to make sure that this lone wolf provision
is being appropriately applied.
So this would basically give the lone wolf provision the
same sunset that the rest of the PATRIOT bill had, but because
this is a late edition, we don't have the same track record
with it. And I would urge my colleagues' support.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa?
Mr. Issa. Thank you, Mr. Chairman. And I rise in opposition
to this----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Issa. Thank you, Mr. Chairman. The provisions--the lone
wolf provisions in the original version of H.R. 10 is virtually
identical to the lone wolf provision contained in Senate 113,
which was passed in the Senate by a 90 to 4 vote, and was co-
sponsored by Senators Biden and Schumer. I do appreciate the
gentleman from California's belief that there hasn't been
enough time or that perhaps this could be abused. But I think
it's clear that with London bombing just days ago, on 7/7, that
we're going to continue to have lone wolves. We're going to
continue to have individuals who cannot either at the time
before or even immediately following a crime necessarily be
linked to an international terrorist group, and that, in fact,
this legislation, as it is, is important to be left as it is.
There has been no case for sunsetting because there--although
you mentioned concerns, there have been no examples of abuse or
anything inappropriate under the current law.
And I would suggest that if you have a reform of the
current law, this is an appropriate time to bring it, but not
simply to sunset something for which we have not yet discovered
a flaw.
I'd yield to the gentleman from California for a question.
Mr. Schiff. I appreciate the gentleman yielding. Did the
gentleman support the 9/11 bill? The amendment offered by Mr.
Berman, which would have modified this section to provide
additional protection? I think it was supported on a bipartisan
basis. If it was good then, it should be good now.
And, in fact, this is less----
Mr. Berman. It was good then.
Mr. Schiff. --restrictive.
Mr. Berman. It was good then.
Mr. Issa. Mr. Berman is assuring us, reclaiming my time,
that it was good then. You know, this is the--we are existing
with the law today. What you're proposing to do is to sunset
rather than potentially amend. I mean we're glad--I'm happy to
talk about amendments. That's what we're here for. But I'm
going to be--resist and ask my colleagues on both sides of the
aisle to resist simply kicking the can down the road 3 more
years in case we discover something. I believe that appropriate
and routine oversight now is what we're going to have on this.
Chairman Sensenbrenner. Would the gentleman yield back?
Mr. Issa. Yeah. I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman?
Mr. Berman. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. I think this is a very good amendment. Mr.
Schiff has explained it well. But I want to just remind my
colleagues on the Committee and the lone wolf--it is certainly
true that there can be this lone operator out there and engaged
in terrorist acts or planning terrorist attacks so we want to
have the tools to deal with that person. But remember the
fundamental structure of all this. It's all base on a FISA
Court where there is a lower threshold for getting surveillance
warrants and all these different things, not probable cause
that a crime has been committed.
And the only reason it--the real reason why it's been
considered to be constitutional is because it's geared to
foreign powers or agents of foreign powers.
Almost by definition, the lone wolf is not and can't be an
agent of a foreign power, 'cause he's a lone wolf.
Mr. Issa. Would the gentleman yield?
Mr. Berman. Yes.
Mr. Issa. You know, I don't want to be the ultimate
conspiracy theorist, but was Lee Harvey Oswald, in his trips
back and forth to Cuba, a lone wolf or was he an agent of
foreign government? We don't always know that. We have a good-
faith belief that somebody may be an agent of a foreign
government. And I certainly think that on the next amendment
which I understand you are going to offer, we can have further
discussion. But when it comes to the sunsetting, I think we are
dealing with sunsetting here, not with the substance of your
amendment.
Mr. Berman. Well, but, I mean, the same logic that we
debated how long the sunset should be certainly applies to this
as well. But I wasn't planning to offer the amendment, and you
haven't said enough to make me think I should rethink my
position yet.
Mr. Issa. I will be glad not to have you rethink your
position.
Mr. Berman. But look, let me just--the constitutional
requirement that the lesser standards and privacy protections
authorized for FISA surveillance pass constitutional is that
they are limited to use against foreign powers and their
agents. There is a constitutional question here. I had offered
an amendment before that created a presumption that the FISA
court could apply, a presumption that the lone wolf was an
agent of a foreign power. That was adopted, and then somehow
disappeared.
But, so particularly where you have something that is
constitutionally at least arguably questionable here, the logic
of a sunset is even greater because it imposes a kind of review
and helps--becomes a forcing mechanism for us to look at a way
to salvage a provision which, in the context of what we want to
do on terrorism, makes sense.
And so I think you ought to give Mr. Schiff the sunset
clause here, and then let's create a process that sort of
empowers us to--or that forces us to figure out the right way.
Maybe it is not the presumption. Maybe there is something else
we can do to deal with the constitutional questions involved in
letting this kind of surveillance take place against someone
who might not have any connection to a foreign power or be an
agent of a foreign power.
Mr. Delahunt. Would the gentleman yield?
Mr. Issa. Sure.
Mr. Delahunt. I wonder if the gentleman from California and
the Chairman would consider, if Mr. Schiff was willing to, by
unanimous consent, amend his amendment and bring it in line in
terms of the sunset with the other two provisions that Mr.
Lungren's amendment made part of the bill today, that would
give us three provisions. And particularly, given the arguments
that both Mr. Berman made and I think Mr. Schiff accurately
made, it would give us a period of time to test the----
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the amendment offered by the gentleman
from California, Mr. Schiff. Those in favor will say aye?
Opposed, no?
The noes appear to have it.
Mr. Schiff. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. A recorded vote will be ordered.
Those in favor of the Schiff amendment will, as your names are
called, answer aye; those opposed, no. And the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 22 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
I have an amendment at the desk. It is labeled Nadler-
Jackson Lee-Waters.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler,
Ms. Jackson Lee, and Ms. Waters. Add at the end the following:
Sec. ___. Limitation on Time to Delay Notice of Search
Warrants. Section 3103a(b)(3) of title 18, United States Code,
is amended by striking ``a reasonable period'' and inserting
``30 calendar days, which period, upon application of the
Attorney General, the Deputy Attorney General, or an Associate
Attorney General, may thereafter be extended by the court for
additional periods of up to 60 calendar days.''
[The amendment of Mr. Nadler follows:]
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. A point of order has been reserved
by the gentleman from Texas.
The gentleman from New York, Mr. Nadler, is recognized for
5 minutes, subject to the point of order reserved.
Mr. Nadler. Thank you, Mr. Chairman.
This is a very simple amendment. Section 213 of the PATRIOT
Act allows the FBI to conduct secret searches--it is the so-
called sneak-and-peek section. It allows the FBI to conduct
secret searches in any investigation, including run-of-the-mill
criminal investigations, and indefinitely delay notice to the
target of the search.
Right now, they can delay notice for a reasonable period,
which can be anything. And what this amendment says is it
should be 30 calendar days. However, upon application to the
Attorney General, the Deputy Attorney General, or an Associate
Attorney General, it can thereafter be extended by the court--I
am sorry, an application ``by'' the Attorney General or his
deputies--can be extended by the court for additional periods
of up to 60 calendar days.
Now, those can be any number of additional 60 calendar
days. And it is very simple. If you are going to conduct a
search of a person's home or business, there may be a good
reason not to tell them afterwards. There may be a good reason
that, if you told them, it would result in destruction of
evidence or in flight from the jurisdiction or in death or
something, and therefore you don't want to tell them. But it is
an invasion of liberty to be able to--it is an invasion of our
traditions to be able to conduct a search without telling them
afterward. So this simply says after a certain period of time,
30 days, if you think that you still can't tell them, you tell
the court why. And then 60 days and 60 days and 60 days. It is
simply giving the court the authority to limit how long the
lack of notification after a search of someone's premises can
be.
Now, the PATRIOT Act extended sneak-and-peeks from where
they were to cases where the Fourth Amendment is applicable
and, frankly, to somewhat questionable constitutionality, this
probably ameliorates any challenge to its constitutionality.
But it is the right thing to do from a liberty aspect. Where
you really need to keep that secret for any length of time,
that is fine; you can do that. And where you shouldn't, you
have to review it every 60 days.
So I urge the adoption of this amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Nadler. Yes, he does.
Mr. Smith. Mr. Chairman, I will withdraw my point of order.
Chairman Sensenbrenner. Reservation is withdrawn.
The gentleman from Arizona, Mr. Flake.
Mr. Flake. This is with regard to the 30 calendar days you
are asking for.
Mr. Nadler. Thirty calendar days, and after--would the
gentleman yield?
Mr. Flake. No, let me explain first and then I will yield.
Mr. Nadler. Well, I think you just asked a question. Just
to answer your question.
Mr. Flake. Okay, yes.
Mr. Nadler. Thirty calendar days and 60-day extension by
the court.
Mr. Flake. I do have an amendment that will come up on the
floor, if it is made in order, which would have--instead of 30
days, it would be 180 days. It would be the maximum time
allowed now, and additional periods up to 90 days.
Mr. Nadler. It would be 180 days for the first?
Mr. Flake. Yes.
Mr. Nadler. And then additional period of 90?
Mr. Flake. Ninety days, yes. And I would be happy to work
with the gentleman on an amendment.
Mr. Nadler. Would the gentleman yield?
Mr. Flake. Yes.
Mr. Nadler. Well, first of all, I am glad to hear it was
made in order. I didn't know the rules----
Mr. Flake. No, no, I said if it is made in order.
Mr. Nadler. Oh, if it is made in order. Well, I would
certainly support that amendment. I think 30 and 60 is better--
what did you say, 180 and 90?
Mr. Flake. One hundred eighty and 90.
Mr. Nadler. Well, I think 30 and 60 is better, because you
ought to--I could support 180, but I think 30 is better. I
think 60 is better to go back to courts. I would hope the
gentleman would support this in Committee. I don't know why we
wait for the floor to do this if it is a good idea.
Mr. Flake. I will support it anywhere. But----
Mr. Nadler. Well, I hope you support this amendment.
Mr. Flake. No, no. No, I would like to support my
amendment. And my understanding is we would like to do it on
the floor.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Flake. I yield back.
Chairman Sensenbrenner. The question is on the----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, this is an interesting process
where everybody is going to have their amendments on the floor
rather than in--subject to a hearing, subject to Subcommittee
markup and a Committee markup. We got the bill just a few days
ago. We haven't had a hearing on the bill. And here we are with
the rules people taking--I don't know whether the Rules
Committee will allow these amendments or not, but it is just an
unusual circumstance.
The purpose of the notice and the presumption of notice,
usually there is an extraordinary situation that you would
sneak and peek for a search warrant anyway. If there is a
mistake, the fact that you have notified someone right there on
the spot, they can tell you that you are searching the wrong
house. This is a tremendous invasion. It is a constitutional
right to be secure in your person and property.
The amendment is reasonable. And we ought to have a debate
on the amendment rather than just hide the ball and spring it
on us. We don't know what these amendments are going to look
like on the floor, and we ought to debate it here in a fair
debate. It is just an unusual circumstance and procedure that
people--I don't know what happened in the cloak room back
there. But I will yield to the gentleman from New York.
Mr. Nadler. Thank you. I would ask the gentleman from
Arizona if you think it is a good idea to do--I mean, I am
realistic. I have seen the fate of most amendments today. If
you think you could support 180 days and 90 days, I will be
happy to change this amendment to 180 and 90 and maybe we could
get support for that right here.
Mr. Flake. I will agree to work with the gentleman on it.
This deserves more time, but----
Mr. Nadler. Would you support it in this Committee?
Mr. Flake. No, I would prefer to go with my own amendment
on that.
Mr. Scott. Reclaiming my time. Will the gentleman offer his
amendment now so we can see it?
Mr. Flake. I am still working on it, but--on the precise
language of it. All I have looked at, and I would have to
compare it to the language I am working on, but I see the 30
and 60, I know that I have gone 180 and 90. I haven't looked at
the precise language other than that. I would need more time to
do that.
Mr. Scott. Reclaiming my time. Would the gentleman want to
join in my complaint that we haven't had time to consider this
in Committee? I mean, you haven't had time to prepare your
amendment. I assume you notice that this is a rushed process.
You have amendments you are still working on. We haven't had
Subcommittee, and here we are in Committee on a short notice.
Does the gentleman acknowledge that this is a rushed process;
you have not had adequate time to prepare your amendments?
Mr. Flake. I would not acknowledge any such thing. We have
had 12 hearings. You mention there has not been a hearing on
the amendment. To my knowledge, we don't typically call
hearings on amendments. But on the bill, the underlying bill,
we have held 12 hearings on. This has been quite a deliberative
process.
Mr. Scott. Reclaiming my time. I would remind the gentleman
that we have had no hearings on the bill.
Mr. Flake. Well, we actually did have a hearing on delayed
notice.
Mr. Scott. Well, we have had no hearings on the bill. We
have had hearings on the act, we have had hearings on the
subjects, but we have not seen the bill. And that is why the
gentleman is having trouble with his amendments. Can't get them
ready because we haven't had a hearing. Now, had we had a
hearing on the bill, the gentleman would have possibly had time
to prepare an amendment where it could be considered in the
normal process.
I yield to the gentleman from California.
Mr. Issa. Thank you. And I think, to find a common
agreement, I think it is wonderful we have a member on this
side of the aisle who talked to you in principle, what he is
looking at. It is different than what you are looking at by a
significant amount of days. But----
Mr. Nadler. But we are willing to change it to those days.
Mr. Issa. What I would suggest is either withdraw--and I
would suggest withdraw without prejudice--and work on it behind
the scenes. Because at this point, I think what we agree on is
we disagree on the number of days, so why have a vote? Why not
get a----
Mr. Nadler. Would the gentleman yield?
Mr. Scott. Reclaiming my time, I yield to the gentleman
from New York.
Mr. Nadler. Thank you. I think I said a few moments ago, I
am willing to change the number of days to the same number of
days that the gentleman mentioned a moment ago, 180 and 90. So
there is no difference on that. I am not aware of what language
there is here. It is simply a question of listing the number of
days.
There seems to be a determination not to do an amendment on
this subject in Committee, but only on the floor. Now, maybe
there is a reason for that, but it is not the----
Mr. Flake. Will the gentleman yield? I would like to ask
unanimous consent to include in the record the chronology of
the hearings that we have held on this subject.
Chairman Sensenbrenner. Without objection.
[The chronology of hearings follows:]
Mr. Nadler. Reclaiming--reclaiming somebody's time. I
don't----
Chairman Sensenbrenner. The time of the gentleman from
Virginia has expired.
Mr. Nadler. Could I ask unanimous consent for an additional
2 minutes to the gentleman's----
Chairman Sensenbrenner. Without objection.
Mr. Nadler. And I assume he yields to me, since he is
talking.
I don't have any quarrel or complaint about the fact that
we had only 12 hearings and maybe we should have held 13. That
is not what anybody is saying here. What we have been saying is
that there has been no--my complaint is that we have had no
time, really, since we saw the Chairman's bill, which was only
Friday night, or late Friday. And as I said at the beginning of
this hearing back at--you know, a few hours ago, we should have
had time to send this bill out for comment to everybody across
the country, to the law schools, the Civil Liberties Union, the
Conservative Union, and the libertarian groups, and get their
comments and fashion amendments with that. That would have also
given us time so that the gentleman from Arizona could have had
his amendment ready for this Committee.
But the fact is, we are willing to go with an amendment--
Let me put it this way. If you don't--we are willing to go with
an amendment now that says 180 and 90 days. And if the
gentleman thinks, upon further reflection before the floor,
that for some reason, if we were to pass that amendment with
the gentleman's support, that the language--the only language
here is the time. If the language needs changing, you can
certainly try to do that on the floor. But it would certainly
be helpful I would think to the process if we agree on 180 days
and 90 days, to get that concept at least in the bill at this
point.
At this point, let me ask unanimous consent to change my
amendment to 180 days and 90 days.
Chairman Sensenbrenner. Is there objection?
Hearing none, the modification is agreed to.
Mr. Coble. Objection.
Chairman Sensenbrenner. Objection is heard.
Mr. Nadler. Objection is heard to--?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
The question is on the option----
Mr. Nadler. Well, Mr. Chairman, I will withdraw the
amendment and submit another amendment with the appropriate
number of days in about 20 minutes. If you want to waste the
time, I am perfectly willing to do that.
I withdraw the amendment.
Chairman Sensenbrenner. The amendment is withdrawn.
Ms. Jackson Lee. Mr. Chairman, I have an amendment.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. I thank the Chairman very much. I have an
amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Ms. Jackson Lee. It should be--I don't want to mislabel it.
I have it as 052, amendment to--I am sorry, excuse me. Let's
see. Excuse me, I am sorry. The amendment is 001 XML Section
218.
The Clerk. Amendment to H.R. 3199, offered by Ms. Jackson
Lee. At the appropriate place in the bill insert the following
new section.
Sec. 218. Notice of Search or Surveillance If Subject of
Such Search Or Surveillance Is A United States Person That Is
Not An Agent Of A Foreign Power.
(a) Electronic Surveillance. --Section 106 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1806) is
amended by adding at the end the following new subsection:
``(1) Where an electronic surveillance authorized and
conducted pursuant to section 105 involves a United States
person--''
Ms. Jackson Lee. Mr. Chairman, I would ask unanimous that
the amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Ms. Jackson Lee follows:]
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I note
throughout the day the vigorous----
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. It is too late to reserve a point
of order. The gentlewoman has already been recognized.
Ms. Jackson Lee. May I proceed, Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman is recognized.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I note throughout the day that there has been a vigorous
discussion, and I would hope that that discussion might have
lent itself to a number of opportunities to work together. As I
started this morning, I indicated my departure was on the basis
of a historic day today, and that is the return to human space
flight.
We have an historic opportunity, which is to recognize that
we are a Nation of laws and, of course, a Nation of liberty.
This amendment tries to focus on that particular point and it
addresses part of the number of abuses that have occurred under
the USA PATRIOT Act. In particular, I would like to bring
attention to an abuse in the Brandon Mayfield case. The FBI
used Section 218 to secretly break into his house, download the
contents of four computer drives, take DNA evidence, and take
355 digital photographs. Though the FBI admits Mr. Mayfield is
innocent, they still will not divulge a secret court order to
him or allow him to defend himself in court. It is unclear how
the search was for any reason but to find evidence
incriminating Mr. Mayfield.
In Virginia, we are told of a physician of Pakistani
origin. In fact, I believe his discipline is as a neurologist.
Well-respected in his community, arrested. We understand that
his property may have been searched. Ultimately, after a period
of time, he was released. To his friends and family, they
welcomed him back. But at the same time, suspicion still
presides over him among his peers and neighbors.
And so I speak strongly in support of an amendment that I
believe speaks to the question of liberty. In general, this
amendment would amend the FISA to protect the Fourth Amendment
rights of individuals whose homes are secretly searched, or
conversations overheard, but who turn out not to be spies and
terrorists, by requiring that they may be notified of the
search or surveillance, of the fact.
More specifically, the amendment states that where
electronic surveillance is authorized for use on a United
States person, if at any time it is determined by the Attorney
General that the person is not an agent of a foreign power, the
Attorney General must give notice to the person no later than
180 days after the date it is determined that the person is not
an agent of a foreign power.
Under the amendment, the same principle is applied to
physical searches, pen registers, taps, and trace devices.
Before moving forward, it is important to mention why this
amendment is needed. Section 218 broadens the circumstances
when secret surveillance and secret searches targeted against
Americans may be used. In fact, the number of FISA
surveillances and searches have substantially increased since
the PATRIOT Act. Having eliminated a key safeguard against
abuse of these extraordinary powers, Congress should now act to
protect constitutional rights at issue in FISA surveillance.
Today we cannot ignore the Constitution in reauthorizing
this legislation. Congress can do so without erecting a new
wall against information sharing, one of the rationales for
adopting Section 218. The suggested protections will not
interfere with information sharing; in all events, Section 504
of the PATRIOT Act explicitly states that FISA information may
be shared with law enforcement personnel. FISA, unlike sneak-
and-peek searches under Section 213 of the PATRIOT Act,
authorizes searches and wiretaps that are kept permanently from
the Americans whose homes and conversations are targeted, where
secrecy raises serious Fourth Amendment concerns. As a result
of Section 218, the use of these extraordinary powers has
increased.
The ability or the inability to give notice to someone
proven innocent also lends itself to one of our ugliest
accusations in America, and that is racial profiling and
religious profiling, leaning more toward individuals of a
particular religion or race in the course of our efforts to
secure the homeland. FISA procedures also raise due process
concerns when individuals are charged based on FISA evidence.
The only time the Government is required to inform an
individual that he has been subject to FISA surveillance is
when it brings charges against him.
This amendment is transparent when necessary. It is
transparent when the individual has been proven innocent, no
charges have been brought against him. It seems absolutely no
reason that the individual cannot, if you will, be given notice
no later than 180 days after the date it is determined that the
person is not an agent of a foreign power. It seems that this
comports with our----
Mr. Smith. (presiding) The gentlewoman's time has expired.
Ms. Jackson Lee. It seems that this comports, Mr. Chairman,
with our effort at adhering to laws and to liberty. I would ask
my colleagues to support this amendment.
Mr. Feeney. Mr. Chairman?
Mr. Smith. The gentleman from Florida, Mr. Feeney, is
recognized.
Mr. Feeney. I move to strike the last word, and I
appreciate the gentlelady's----
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. Feeney. I appreciate the gentlelady's comments. In the
first place, we are very mindful of the constitutional
requirements of the Bill of Rights and elsewhere. There is no
part of the PATRIOT Act that has been determined to be infirm
by any Federal court as unconstitutional.
Secondly, while the gentlelady talks about the rights of
citizens--and they are very important on this side of the
aisle, I can assure her--we are not talking about criminal
investigations of citizens. We are talking about terrorist
investigations or spy investigations.
And thirdly, while the gentlelady's amendment goes to
notification by third parties of individuals if they are
determined by the Justice Department not to actually be an
agent of a foreign power, her amendment doesn't say anything
about the case where this individual that was originally a
target turns out to be connected to a spy, perhaps the husband
or the wife of a spy, perhaps a partner of a spy. And what the
gentlelady is forcing the Justice Department to do with her
amendment is to have our folks in the middle of an
international terrorist or spy investigation show our cards to
the whole world, including the bad guys. And I suggest that it
is a bad idea.
I yield back the balance of my time.
Mr. Smith. The gentleman yields back the balance of his
time. Are there any other members who wish to be heard on the
amendment?
If not, the vote occurs on the amendment. All those in
favor----
Mr. Schiff. I would move to strike the last word and I
would yield my time----
Mr. Smith. The gentleman from California is recognized for
5 minutes.
Mr. Schiff. And I yield to the gentlewoman.
Ms. Jackson Lee. Mr. Chairman, let me beg to differ with my
good friend. A number of sections have been found
unconstitutional. Let me share with the gentleman. Section 805
has been found unconstitutional by three separate courts. That
is the question of material support for terrorism. The 9th
Circuit found the provision prohibiting personnel in training
was overly vague. The Central California District Court found
the provision prohibiting expert advice and assistance was
overly vague. A New York District Court found the provision
prohibiting personnel and acting as a quasi-employee overly
vague.
A number of these provisions have been found to be abusive
and, of course, an over-reach. I join my distinguished friend
to argue for security. We have had a number of incidences of
which we even recognize the importance of intelligence, such as
the tragedy of the rail explosions in London, England. My point
is that there comes a point, when the individual is found not
to be part of a foreign agent, when you tell that individual.
Now, if you have information against, if you will, the
wife, the cousin, the neighbor of this individual, then that is
who the FBI should be reaching out to, not the particular
person who has been cleared of being a foreign agent. And
cleared. If the FBI wants to start this process again, they can
start the process again. This simply provides them with the
appropriate notice after they have been cleared and determined
that they are not an agent of a foreign power, which is the
basis of this particular section.
Mr. Feeney. Will the gentlelady yield?
Ms. Jackson Lee. I yield for a moment.
Mr. Feeney. The point is, it is too late after you tell
Mrs. Benedict Arnold that she was the subject of an
investigation, if you find out that it is her husband that
wants to throw the war to the bad guys.
Ms. Jackson Lee. Reclaiming my time. I think that it is not
too late, frankly. And I think that when the FBI or when law
enforcement makes a determination that this individual is not
an agent of a foreign power, you can be assured that in the
course of doing so they have investigated all of their extended
family members, friends, neighbors, and otherwise. And they
have the ability to, if you will, to secure those persons in
the appropriate way so that if they have information that is
relevant, they can have those individuals incarcerated.
This provides--contributes to the list of abuses that has
been generated by the PATRIOT Act, and in actuality it offers
more of an undermining of our attempt to be secure than it does
in enhancing our attempt to be secure. It casts a wide net on
people that are already established as not being an agent of a
foreign power.
I frankly believe that this is not working, that this is an
amendment that is clearly not over-broad. It simply makes a
statement of giving notice. It simply allows someone to proceed
to further clear themselves and to be made aware that they have
been determined not to be an agent of a foreign power.
Again, it does not stop the authorities from investigating
all other people associated with them.
And I would ask my colleagues to support this amendment.
Mr. Smith. The question occurs on the amendment. All those
in favor, say aye. All those opposed say nay.
Ms. Jackson Lee. rollcall.
Mr. Smith. The noes have it, and the amendment is not
agreed to. The clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
[No response.]
The Clerk. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there any members who wish to
cast or change their votes? The gentleman from North Carolina
is recognized.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly, is recognized.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. The gentleman from within, Mr.
Green, is recognized.
Mr. Green. No.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Chairman Sensenbrenner. Are there any other members who
wish to vote or change their vote? If not--Excuse me, the
gentleman from Michigan, Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 10 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
The gentleman from Arizona, Mr. Flake, is recognized for an
amendment.
Mr. Flake. I have an amendment at the desk and I ask
unanimous consent that it be considered the Flake-Nadler
amendment.
Chairman Sensenbrenner. The clerk will read the amendment.
And without objection, it will be so named.
The Clerk. Mr. Chairman, I don't have a copy of the
amendment.
Chairman Sensenbrenner. Okay. It will be forthcoming, I
think. The gentleman from Arizona, Mr. Flake, is recognized for
5 minutes to explain his amendment.
Mr. Flake. I thank the Chairman. I thank Mr. Nadler for
bringing this up. I have worked with Mr. Nadler and others on
PATRIOT Act Reform Caucus and many of the amendments that we
have talked about were discussed within that group.
Mr. Scott. Mr. Chairman, point of order. Have copies been
distributed?
Mr. Flake. I am in the process.
Mr. Smith. If the gentleman from Arizona will suspend just
for a minute while the amendment is distributed.
[Pause.]
Mr. Nadler. Would the gentleman yield for a question while
we are----
Mr. Smith. Which gentleman?
Mr. Nadler. Mr. Flake.
Mr. Flake. I yield for a question.
Mr. Smith. Before we proceed, I would like to make sure
that the amendment has been passed out. Without objection, the
amendment will be considered as read.
[The amendment of Mr. Flake and Mr. Nadler follows:]
Mr. Smith. The gentleman from Arizona is recognized for 5
minutes. And if he wants to yield for a question----
Mr. Flake. I yield for a question.
Mr. Nadler. My question is, just looking at this amendment
right now, it says--the second part--by inserting ``for not
more than 90 days'' after ``may be extended.''
Is that one 90-day extension, or is that a succession of--
--
Mr. Flake. It has to be in increments of 90 days.
Mr. Nadler. In increments. But it is not limited to one?
Mr. Flake. It is not limited to one.
Mr. Nadler. Thank you.
Mr. Flake. I will go ahead and explain the amendment. This
is--we have had concern about the delayed notification. I have
always felt that we needed some better structure there. This,
as I mentioned, has been an item that the PATRIOT Act Reform
Caucus has been concerned about. We took 180 days; that is the
outside edge right now that can be held. And we have codified
that. And then not-more-than-90-day extensions beyond that
time, in increments.
And with that, I will yield back.
Mr. Smith. The gentleman yields back his time. The
gentleman from New York, Mr. Nadler, is recognized.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I would have preferred, as my amendment a few
minutes ago made clear, a shorter time periods, although, since
in any event they are increments, they could amount to the same
thing in the end, but more frequent judicial review. But
putting 180 days, and 90-day increments after that, is a
constructive step forward. I commend Mr. Flake for it. And I
will certainly support the amendment.
I notice that in the haste, it doesn't have the name of the
sponsor on it. I assume the names of the sponsors will be Mr.
Flake and a few others----
Mr. Flake. I just asked unanimous consent to have it be
considered the Flake-Nadler amendment.
Mr. Nadler. And perhaps some others who wanted to, if they
also want to.
Mr. Flake. That would be okay with me.
Mr. Nadler. I thank the gentleman, and I urge everyone to
support this very worthy amendment.
Mr. Smith. The gentleman yields back his time. Are there
any other members who wish to be heard on the amendment?
If not, all in favor say aye? All opposed, nay?
The ayes have it and the amendment is agreed to.
Are there any other amendments? The gentleman from
Michigan, Mr. Conyers, is recognized.
Mr. Conyers. Mr. Chairman, I have an amendment at the desk
and I ask that it be brought up at this time.
Mr. Smith. The clerk will report the amendment.
The Clerk. Mr. Chairman, I have two Conyers amendments.
Mr. Conyers. This deals with the--the longer one, the three
provisions that comprise the bill.
The Clerk. Amendment to H.R. 3199, offered by MR. Conyers.
At the end of the bill, add the following:
Section ------. Reinstating the----
Mr. Smith. Without objection, the amendment will be
considered as read.
[The amendment of Mr. Conyers follows:]
Mr. Smith. The gentleman from Michigan is recognized for 5
minutes to explain his amendment.
Mr. Conyers. Mr. Chairman and members of the Committee. In
2001, everyone on this Committee agreed to the three provisions
which I have now brought together under one proposal, which
provided necessary and reasonable checks on the Government.
Problem: These provisions were removed when the bill went
to the Rules Committee somewhere in the middle of the night
before it came to the floor the next day.
And here is what I propose in this bill, is that we restore
these three provisions, which I think are pretty
straightforward and are based on a rationale that we had
originally agreed to. The first is that the Government
shouldn't be able to use electronic communications as evidence
when they are illegally intercepted. The second is that the
Government should have to report to Congress about disclosures
of stored wire and electronic communications. And the third is
that we increase the amount of civil damages a person can
recover against those who willfully disclose stored
communications.
With reference to the first, we agreed to provide necessary
and reasonable checks on the Government that they shouldn't be
able to use electronic communications as evidence when they are
illegally intercepted. Under current law, you recall, illegally
obtained oral and wire intercepts can't be used by someone in
court. However, illegally obtained electronic communications
can be, and what we do with this amendment is simply correct
that problem.
For the second point, we want disclosures of stored wire
and electronic communications reported to Congress, and I have
provided for that. Criminal wiretap and pen trap and trace
statutes already require similar reporting. This provision of
my amendment merely asks the Government to report on
disclosures of stored wire and electronic communications as
well.
And finally, we increase the civil damages a person can
recover against those who willfully disclose stored
communications. And this raises it from a pittance of $1,000--
--
Mr. Smith. The gentleman's time has expired. Without
objection, he will be recognized for an additional minute.
Mr. Conyers. Thank you. We merely increased the damages to
$10,000 in the order rather than $1,000, to ensure that the
disclosures don't occur.
These are common-sense, reasonable protections originally
agreed to by the Committee. I hope that that will occur again.
Thank you for the time.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from California, Mr. Lungren, is recognized.
Mr. Lungren. I rise in opposition to the amendment.
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. Lungren. Obviously, I was not here during the
Committee's consideration of the original PATRIOT Act. But in
looking at the gentleman's amendment, with respect to the
suppression provisions, it is my understanding that under
current law as passed there is a good faith exception, which is
not part of the gentleman's amendment. And I just wonder if
that is the intention of the gentleman.
Mr. Smith. Is the gentleman here?
Mr. Conyers. Yes. We add the stored--there is that
provision that you suggest, but it doesn't----
Mr. Lungren. By court rule rather than statute, as I
understand it, and yours would change it. Correct?
Mr. Conyers. Exactly right. And we are just adding stored
wire and electronic communications to be reported to the
Congress, that the electronic communications as evidence that
are illegally intercepted be excluded as court law, and that we
raise the fine from $1,000 to $10,000.
Mr. Lungren. All right, based on what the gentleman has
said, I would have to oppose this amendment, because it seems
to me that the good faith exception is one that is appropriate,
particularly in these cases. And again, as I understand what
the gentleman does is remove a good faith exception with
respect to the suppression part of his amendment--I don't speak
to the other parts of his amendment because, frankly, I don't
have those before us.
I yield back the balance of my time.
Ms. Lofgren. Would the gentleman yield?
Mr. Smith. The gentleman has yielded back the remaining of
his time.
Ms. Lofgren. I move to strike the last word.
Mr. Smith. The gentlewoman from California, Ms. Lofgren, is
recognized.
Ms. Lofgren. I won't use the 5 minutes. But I do think
that, certainly, my colleague from California, Mr. Lungren, was
not a member of the Committee when the PATRIOT Act was drafted.
But for those who were on the Committee at that time, I would
hope and expect that they would vote once again for this
language. This was unanimously passed by the entire Committee,
and I think we will be looking closely at members who voted for
it once, expecting that they would be consistent in their vote
this time.
And I would yield back.
Mr. Smith. The gentlewoman yields back the balance of her
time. Are there any other members who wish to be heard on this
amendment?
Ms. Lofgren. I ask unanimous consent to reclaim my time and
yield it to Mr. Conyers.
Mr. Smith. The gentlewoman yields the balance of her time
to Mr. Conyers, then.
Mr. Conyers. I just wanted the gentleman from California to
know that we are happy to include the good faith exception part
that he raised, because we have no--we are in agreement with
it. We just want to make it clear, because that is not a point
of contention between us.
Mr. Smith. The gentlewoman yields back the balance of her
time.
The vote is on the amendment. All in favor, say aye?
Does the gentleman wish to continue to be recognized?
Mr. Conyers. Yes. Mr. Chairman, I just ask unanimous
consent that, under 215(a)(2)(B), that we add ``or when done in
good faith.'' So it would read, (B) when done in good faith
whenever any wire, oral, or electronic communication has been
intercepted.
The point is to emphasize the good faith exception for
purposes of clarification for anyone that might think that it
is not involved.
Mr. Smith. Without objection, so ordered.
Now the vote----
Mr. Scott. Reserving the right to object, I would like to
ask a question.
Mr. Smith. The gentleman from Virginia, Mr. Scott.
Mr. Scott. Is that in good faith pursuant to a warrant?
Mr. Conyers. I don't know if the statute, Mr. Scott, speaks
to whether there is a warrant involved or not. I think that
good faith would likely include it, but I can't tell you right
now that it would require a warrant or not. Not clear.
Mr. Smith. We will now go to a vote on the amendment. All
in favor----
Mr. Feeney. Mr. Chairman?
Mr. Smith. Who wishes to be recognized?
Mr. Feeney. Mr. Chairman, I understood that there was a
unanimous consent request, and if it is timely, I would like to
object to that.
Mr. Smith. There was a unanimous consent request and no one
was recognized in an objection.
Mr. Feeney. I thought we were still on questions and
discussion about the unanimous consent request.
Mr. Chairman, I will, given the confusion, withdraw the
objection.
Mr. Smith. Okay, without objection the gentleman can
withdraw his objection. We will now proceed to a vote on the
amendment.
All in favor, say aye? All opposed, say nay?
The nays appear to have it. The amendment is not agreed to.
Mr. Conyers. Could I get a record vote?
Mr. Smith. And a record vote has been requested. The clerk
will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
[No response.]
The Clerk. Mr. Feeney?
Mr. Feeney. No.
Mr. King. No.
The Clerk. Mr. Feeney, no. Mr. King, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Mr. Smith. Are there any other members who wish to vote or
change their vote? The gentleman from North Carolina, Mr.
Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith. The gentleman from Ohio, Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Smith. The gentleman from California, Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Smith. The gentleman from California, Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Smith. The gentleman from Florida, Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Smith. Any other member who wishes to vote or change
their vote? If not, the clerk will----
The gentleman from Massachusetts?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Mr. Smith. The gentleman from California, Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Smith. Any other members? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.
Mr. Smith. The amendment is not agreed to.
Are there any other----
Mr. Nadler. Mr. Chairman?
Mr. Smith. The gentleman from New York, Mr. Nadler, is
recognized.
Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at
the desk. This is labeled ``Gag Order.''
Mr. Smith. Does the clerk have the amendment?
Mr. Nadler. It says, ``Sec. ___. Gag Order.''
The Clerk. Mr. Chairman, I don't have that amendment at the
desk.
Mr. Smith. While we are getting that amendment----
Mr. Nadler. Well, there it comes.
The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler of
New York. Insert at the appropriate place----
Mr. Chabot. Mr. Chairman, reserving a point of order.
Mr. Smith. The gentleman from Ohio reserves a point of
order. The clerk will proceed.
The Clerk. --insert at the appropriate place in the bill
the following:
Sec. ___. Gag Order.
(a) In General. Section 2709(c) of title 18, United States
Code, is amended to read as follows:
``(c) Prohibition of Certain Disclosure.''
``(1) In General. No wire or electronic communications
service provider, or officer, employee, or agent thereof, shall
disclose to any person that the Federal Bureau of Investigation
has sought or obtained access to information or records under
this section for 90 days--''
Mr. Smith. Without objection, the amendment will be
considered as read.
[The amendment of Mr. Nadler follows:]
Mr. Smith. The gentleman from New York is recognized for 5
minutes to explain his amendment.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, Section 505 of the PATRIOT Act authorizes
field office--now, we have been talking at some length at
different times today and on the floor of the House about
Section 215 of the PATRIOT Act, which enables a FISA court to
grant orders for certain collections of personal information.
Section 505 of the PATRIOT Act authorizes FBI field office
directors to collect in secret, without any court
consideration, almost limitless sensitive personal information
from entities that are not themselves under investigation--that
is, bookstores, travel agents, Internet service providers, and
so forth--but have customers whose records the Government
wants, by simply issuing a National Security Letter carrying
the weight of law and the FBI's own assertion that the request
is relevant to a national security investigation.
These National Security Letters, or NSLs, empower the FBI
to amass personal documents without a judge signing off on a
search warrant, without any other external check, such as a
grand jury or even a FISA court. The target of the NSL will
never know of its existence, partly because the recipient of
the NSL is gagged from disclosing the demand, again as in
Section 215.
This secret search power has been the subject of a court
challenge in Federal court in New York. In Doe v. Ashcroft, the
Federal court judge in the Southern District of New York ruled
that this provision, that the National Security Letters
provision of the PATRIOT Act is unconstitutional. The court
held that the absence of judicial review--and when I say
``judicial review'' here, I don't mean review of the order, the
fact that you can give this out without any judge ever seeing
it--violates the Fourth Amendment right to be free from
unreasonable searches and seizures, and the statutory
prohibition against disclosing the FBI request to any person
violates the First Amendment right to freedom of speech. And
that means--``any person'' means any person, including your
counsel. So you can't even tell your lawyer so you can move to
quash.
The current language continues the unconstitutional
permanent secrecy order contained in the existing FISA business
records provision. To be constitutional, case law establishes
that a secrecy order amounting to a prior restraint on speech,
as this is, must be imposed by a court, not unilaterally by a
Government, must be imposed on the basis of a meaningful
standard that amounts to a compelling Government interest, must
be temporary, and must allow for objectors to explain why the
prior restraint is unjustified.
What this amendment does is seek to make the gag order
provision of the Section 505 National Security Letters comply
with the Constitution. And it does that by saying, in essence,
two things. It says that to get the gag order, you have to ask
a court for it, and that the court can grant it upon a showing
of various standards, that failure to keep it secret would
endanger the life or physical safety of someone, would raise
the danger of a flight from prosecution, would result or could
result in the destruction or tampering with evidence,
intimidation of potential witnesses, or otherwise seriously
endanger the national security of the U.S., et cetera, et
cetera--the catchall clause that some of us objected to in
Section 215. The court could order this for 90 days and could
order 180-day renewals indefinitely.
So what this does, essentially, is make the gag order
provision constitutional by saying you have to ask a court for
it, the court can grant it for 90 days, and you can get 180-day
extensions upon these showings. Let me just say that these
showings are the same showings that are in Section 215.
Although we wanted to take out the catchall provision, in this
amendment we haven't taken out the catchall provision. So it is
the same showings that we have in Section 215, which everybody
here has agreed to, except some of us who think it is too
broad.
So I would urge adoption of this amendment so that the gag
order provision of Section 505 will be constitutional and so
that it is a better thing to do, even if the Constitution
didn't require it.
Mr. Smith. And the gentleman yields back his time.
Mr. Nadler. I yield back.
Mr. Smith. Does the gentleman from Ohio insist on his point
of order?
Mr. Chabot. No, Mr. Chairman, I withdraw my point of order.
Mr. Smith. If not, the point is withdrawn.
The gentleman from Florida, Mr. Feeney, is recognized.
Mr. Feeney. Move to strike the last word.
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. Feeney. I have the same objection to this reversal of
the burden and putting it back on the Justice Department to
maintain some secrecy in their investigation as I had on the
previous amendment that dealt with 215.
The nature of these investigations is such that 180 days is
an awfully unreasonably short period of time. These
investigations typically take not months, but years. In
addition to that, this type of disclosure would require Federal
investigators to tip off potential suspects, friends,
associates of suspects, giving them a chance to go into hiding,
to flee, to move up their potential terrorist attack--in other
words, adjust themselves because we are once again putting all
of our cards on the table in a very dangerous business.
In The Center for National Security Studies v. The U.S.
Department of Justice, a D.C. Circuit case in 2003, the court
said that these types of disclosures would inform terrorists
about the substantive and geographic focus of the
investigation, would inform terrorists which of their members
were compromised by the investigation and which were not, could
allow terrorists to better evade the ongoing investigation and
more easily formulate or revise counter-efforts.
I think for all those reasons, these artificial deadlines
and changing the burden of proof back to the Government as they
fight terrorists is a bad idea----
Mr. Nadler. Would the gentleman yield.
Mr. Feeney. I will yield.
Mr. Nadler. Thank you. Well, first of all, we are not
changing the burden of proof. The standard in the amendment, as
you will see, is if the court determines there is reason to
believe--``reason to believe'' is a very low standard. That is
not the burden of proof. It is not a preponderance of evidence,
it is not proof, you know, by anything. There is reason to
believe. And there is reason to believe what? Reason to believe
any of the things that the gentleman from Florida said might
happen.
Yes, I agree with you, sir. In very many cases disclosure
would result in unfortunate things such as you mentioned. All
you have to show to the court is that there is reason to
believe that the disclosure in this case would result in any of
those, in any----
Mr. Smith. The gentleman's time has expired.
Mr. Nadler. I ask for unanimous consent to an additional 2
minutes?
Mr. Smith. Without objection, the gentleman from Florida is
given an additional minute.
Mr. Feeney. I request an additional minute, 30 seconds of
which I will yield to the gentleman from New York.
Mr. Nadler. Thank you. If we don't do this, the courts have
held that a gag order, especially on something which no court
has seen, is unconstitutional unless you have given some reason
to a court to agree to the gag order. You have to do that;
otherwise, it is going to be flatly unconstitutional.
All we are saying here, it is not a burden of proof. We are
not giving the burden of proof to anybody. You have to convince
the court there is reason to believe that any of these negative
things would happen--not that definitely would, not even that
it probably would.
Mr. Feeney. Well, reclaiming my time. At a minimum, this
would put the burden back on the Government for every single
investigation that is ongoing out there, where there is a NSA
letter out there, with respect to every one of the third-party
entities, to go back into court every 6 months. It would be an
enormous paperwork burden, unnecessary. And to the extent that
there may be some things that we can do probably with a much
longer time period to ultimately comply with whatever concerns
the court has, there may be a chance to remedy that in the
future. But 180 days is clearly too short.
With that, I yield back to the Chairman.
Mr. Smith. The gentleman yields back his time.
Any other members who wish to be heard?
The gentlewoman from California, Ms. Lofgren.
Ms. Lofgren. I move to strike the last word.
Mr. Smith. The gentlewoman is recognized for 5 minutes.
Ms. Lofgren. We did receive some information on how often
this has been used, and it is not an astonishingly large number
of times. So to think that there would be, assuming that the
Department of Justice is being truthful to us--and I am not
suggesting otherwise--this would not create a very substantial
burden on the Department, number one.
Number two, the historical record is that this has not been
used very often. Well, it is not going to be used at all in the
future because it is unconstitutional. And so, actually, Mr.
Nadler is--I support the amendment with some reservations
because this amendment would actually revive this section of
the act and possibly make it constitutional. And with
standards.
And, you know, I guess the Republicans can reject it and
have nothing, or they can have some standards that meet
constitutional muster and have something. The choice is really
yours. I think that, as I say, I support the amendment with
just some reservations because I think the court ruling of
unconstitutionality may actually be a preferable result. But
that is on its way up, and there is some doubt as to what the
Supreme Court will ultimately do.
Mr. Nadler. Would the gentlelady yield?
Ms. Lofgren. I would be happy to yield to the gentleman.
Mr. Nadler. Thank you. I appreciate the gentlelady's
remarks.
And I would again say this has been held unconstitutional
on two grounds. This amendment would cure one of those grounds.
I am going to have a different amendment to cure the other
ground. The other ground says that it is unconstitutional to
issue--to have this search in the first place without at least
a--without a court agreeing to it. Even in Section 215, you
have a FISA court agreeing to it. Here, you have nobody except
an FBI field office director directing it.
But what this amendment deals with is the gag order. You
can't have a prior restraint on speech such as a gag order
without a court agreeing to it for some good reason. That is
elementary constitutional law. The court in New York said that.
It is prior case law. If we don't take this amendment, it is
just going to be unenforceable.
Now, when you say the burden of proof, this is a very minor
burden. Some reason to believe. Some reason to believe; we have
the catchall provision: otherwise seriously endangering the
national security of the U.S. by alerting a target, a target's
associates, or a foreign power of which the target is an agent
of the Government's interest in the target.
If the Government can't convince a judge that there is some
reason to believe that this should be held secret, then it
probably shouldn't be held secret. And if we value any kind of
liberty, we will have this burden to go to courts. That is the
whole point of the Fourth Amendment and the Bill of Rights.
Ms. Lofgren. Reclaiming my time.
Mr. Nadler. I appreciate your yielding.
Ms. Lofgren. I would just note--I mean, having worked on
the original PATRIOT Act, it is hard not to contrast how this
process is working here today with how the process worked after
9/11. After 9/11, members on both sides of the aisle worked in
good faith together to come up with an act that would, we
hoped, make us safer. Mr. Nadler has offered this amendment in,
really, that 9/11 spirit. At that other time, this amendment
would have been seen for what it is, an amendment that actually
cures a defect in the bill that has rendered a section
unenforceable. And because these votes are not on a party-line
basis, there has been no real meeting of the minds, no
deliberation, no discussion, the majority is going to reject an
amendment that actually serves the interest of curing the
defect that the court has found.
Mr. Conyers. Would the gentlelady----
Ms. Lofgren. I would yield to the Ranking Member.
Mr. Conyers. I just want to point out that Mr. Nadler's
proposal here is uncharacteristically cooperative. I mean, he
is saving a part of the PATRIOT Act and it is almost going
unnoticed. Thanks to the gentlelady from California for
pointing out that, without this, the continued
unconstitutionality is going to likely continue on.
And there is a sort of attitude that the Department of
Justice has here that should be noted, that when they finally
had to comply with the Freedom of Information Act, they blacked
out the six-page list of National Security Letters so that
nobody could figure out anything about anything.
Ms. Lofgren. Reclaiming my time, though, we do have access
on a confidential basis to that information. And without saying
any numbers, we can assert honestly that it is not an undue
burden. And I do so assert.
So I think the majority is being foolish in this case, but
welcome to it.
I yield back.
Mr. Smith. The gentlewoman yields back her time.
The question is on the amendment. All in favor, say aye?
All opposed, nay?
The nays have it.
A recorded vote has been requested. The clerk will call the
roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
[No response.]
The Clerk. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
[No response.]
The Clerk. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Mr. Smith. Are there any members who wish to vote or change
their votes? The gentleman from Florida, Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Smith. The gentleman from Tennessee, Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Smith. The gentleman from North Carolina, Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith. The gentleman from California, Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Smith. The gentleman from within, Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Smith. The gentleman from Indiana, Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Smith. The gentleman from Florida, Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Mr. Smith. The gentleman from South Carolina, Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Mr. Smith. The gentleman from California, Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Smith. The other gentleman from California, Mr.
Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Smith. The gentleman from Massachusetts, Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Mr. Smith. The gentleman from California, Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Mr. Smith. And the clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.
Mr. Smith. The amendment is not agreed to.
Are there any other amendments? The gentleman from
California, Mr. Schiff.
Mr. Schiff. Mr. Chairman, I have an amendment at the desk,
number 87.
Mr. Smith. The clerk will report the amendment. Does the
clerk have the amendment?
The Clerk. I do now, sir.
Mr. Smith. Okay.
The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of
California. Add at the appropriate place the following: Section
___. Naturalization Benefits for Victims of September 11----
Mr. Chabot. Mr. Chairman, reserving the right to object.
Mr. Smith. The gentleman from Ohio reserves the right to
object.
Mr. Chabot. Point of order.
Mr. Smith. Raises a point of order.
The Clerk. Subtitle C of Title 4 of the US PATRIOT Act as
amended by inserting after Section 421----
Mr. Smith. Without objection, the amendment will be
considered as read.
[The amendment of Mr. Schiff follows:]
Mr. Smith. The gentleman from California is recognized for
5 minutes to explain his amendment.
Mr. Schiff. Thank you, Mr. Chairman. This amendment would
grant citizenship to the spouses and children of legal
immigrants who were killed on September 11th as well as grant
honorary citizenship to those legal immigrants who were killed
in the attacks. When American citizens, foreign nationals, and
immigrants perished on September 11th, the immigration status
of hundreds of families was thrown into turmoil. Hundreds of
temporary workers and immigrants died shoulder to shoulder with
thousands of Americans.
My amendment is based on legislation by Representative
Maloney and Senator Corzine, and it would bestow honorary
citizenship on legal immigrants and non-immigrants who died in
the disaster. Perhaps more important, the bill would offer
citizenship to surviving spouses and children subject to a
background investigation by the FBI.
This is germane because the PATRIOT bill provided for
exactly this relief, but there was a deadline in the PATRIOT
bill that a number of people missed for filing for status. In
the spirit of fairness and unity, it's appropriate as we
reauthorize the PATRIOT bill to extend this deadline, a short
extension, to provide the privilege of citizenship to the
families who lost so much because of this attack on the United
States.
Mr. Chairman, I yield back the balance of my time.
Mr. Smith. Does the gentleman from Ohio insist on his point
of order?
Mr. Chabot. Yes, I do.
Mr. Smith. The gentleman is recognized to explain his point
of order.
Mr. Chabot. Thank you, Mr. Chairman. I make a point of
order that the amendment is not germane under House Rules. H.R.
3199 reauthorizes certain provisions of the PATRIOT Act and the
Intelligence Reform and Terrorism Prevention Act. House Rule
XVI-7 precludes amendments on a subject different from that
under consideration. This amendment is outside the subject
matter of the legislation we are considering at today's markup.
In addition, the fundamental purpose of this amendment is
inconsistent with the primary purpose of the bill under
consideration and, thus, non-germane under House Rule XVI-7.
I yield back the balance of my time.
Mr. Smith. Does the gentleman from California wish to be
heard on the point of order?
Mr. Schiff. I do, Mr. Chairman.
Mr. Smith. The gentleman is recognized.
Mr. Schiff. And I understand that the concept of
germaneness in this hearing has been somewhat malleable, but
whereas the PATRIOT bill provided this grant of citizenship to
the families of those who were lost on 9/11, and this merely
extends the date in which you can apply for that citizenship,
it's pretty directly related to the PATRIOT bill and changes
that were made specifically in the PATRIOT bill. It's hard to
imagine if it's not germane to the reauthorization of the
PATRIOT bill what it would be germane to. So I would urge the
Chair to reject the point of order.
Mr. Weiner. Mr. Chairman?
Mr. Schiff. And I'd yield the balance of my time to the
gentleman from New York.
Mr. Weiner. I'd just like to be heard on the point of
order. Previously, Mr. Hostettler offered an amendment dealing
with immigration matters that were not within the purview of
the bill. Since he was recognized before it could be deemed to
be out of order, although he withdrew the amendment, it was
considered by this Committee. I would deem that the door has
now been open for similar amendments that deal with immigration
matters, which is something that I think whether we open it or
not, we certainly have an opportunity here to rectify an
inequity and perhaps, you know, move the--further kick the can
down the field on whether or not this is germane. But certainly
the Hostettler amendment considered an immigration matter that
was not in the Sensenbrenner bill.
And I would just reiterate something else. You know, the
notice on this hearing said we were reauthorizing the PATRIOT
Act. The bill that we're considering is called the PATRIOT Act
Reauthorization Act. The memo that accompanied this debate is
called the reauthorization of the PATRIOT--refers to it as the
reauthorization of the PATRIOT Act. So I would argue that it is
germane because the PATRIOT Act spoke to this.
Mr. Smith. The Chair is prepared to rule. First of all----
Ms. Jackson Lee. Mr. Chairman, I'd like to speak to the
point of order.
Mr. Smith. Does the gentleman from California wish to yield
to the gentlewoman from Texas?
Ms. Jackson Lee. I can strike the last word.
Mr. Schiff. Yes, Mr. Chairman, I'd be happy to yield.
Ms. Jackson Lee. I thank the distinguished gentleman from
California, and I rise to support his amendment and to make a
point to the point of order, Mr. Chairman. In particular, might
I say forthrightly that a point of order, that the--it can be
waived, and I would argue that Mr. Schiff's point that this is
not so much an immigration amendment as it is a procedural,
that it asks for an extension, the good will that can generate
from providing for children who suffered the tragic loss on 9/
11 and, therefore, were given citizenship or were to be given
citizenship, as were citizenship given to adult spouses, and
now that they have not been able to fall under that time frame
it is merely procedural. And I think that this Committee could
yield to the procedural point and not consider this an
immigration point. It is necessary, I think, if we are to be,
one, a country of laws and immigrants or immigration, a country
of laws and liberty, that we make good on our promise. And this
amendment makes good on our promise, and I would argue that Mr.
Schiff's amendment be made in order because it is a procedural
amendment, it is not an immigration amendment.
And I yield back my time.
Mr. Smith. The Chair is prepared to rule. For two reasons,
this particular amendment is not germane. First of all, when an
amendment is offered and withdrawn, that does not open the door
to similar amendments. Second of all, when an amendment deals
with a subject that is not under consideration, it's in
violation of House Rule XVI, and that is how I see it. The
amendment is not germane, and are there any other amendments?
Are there any other amendments? The gentleman from
Virginia, Mr. Scott, is recognized.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
Scott 029, additional requirements for multi-point electronic
surveillance under FISA.
Mr. Smith. The clerk will read the amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of
Virginia. Add at the end the following: Section 9. Additional
requirement for multi-point electronic surveillance under FISA.
Section 105(c) of the Foreign Intelligence Surveillance Act of
1978, 50 U.S.C. 1805(c), is amended, before the semicolon at
the end of paragraph (1)(e) the following: :, and, in
circumstances where the nature and location of each of the
facilities or places at which the surveillance will be directed
is unknown when the order is issued, that surveillance may be
directed at a place or a facility only for such time as the
applicant believes that such facility or place is being used or
is about to be used by the target of the surveillance.
[The amendment of Mr. Scott follows:]
Mr. Smith. The gentleman from Virginia is recognized for 5
minutes to explain his amendment.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, this is the ascertainment requirement for a
roving wiretap. When you get a roving wiretap, you get a
wiretap against the person, and you can place the bug wherever
that person may be using the phone. This amendment requires
that in a FISA wiretap--and remember, under FISA you don't need
probable cause of a crime. You just need probable cause that
the person is an agent of a foreign government and you might
get some--any kind of foreign intelligence which could be a
trade deal or anything else. No crime involved.
This amendment requires that in a FISA wiretap, the
Government has to have good faith that the target of the
wiretap is actually using the phone or computer during the time
it's being surveyed. When the target leaves the building, you
got to stop listening.
Now, this is similar to the ascertainment requirement of
roving wiretaps in criminal cases because when the phone or
computer surveilled could be that of an innocent person, next-
door neighbor, acquaintance, or anybody else, it could be the
pay phone on the corner, it could be the phone at the country
club. All this amendment requires is that it be ascertained
that the target is actually there before you start listening.
And if the target leaves, you stop listening.
This requirement would not only protect the privacy of
innocent, non-involved third parties who may be U.S. citizens,
but would also discourage the misuse of the authority to bypass
traditional law enforcement procedures by using the FISA
wiretap to place a bug somewhere where you actually want to
listen to somebody else. This says if you're going to listen to
somebody on a roving wiretap that the person you listen to is
actually the target of the--of the wiretap. And I would hope
that we would adopt the amendment.
Mr. Smith. The gentleman from California, Mr. Issa, is
recognized.
Mr. Issa. Thank you, Mr. Chairman. And I guess this is a
little bit of deja vu all over again. One of the reasons that
it is so important to remain as it is is that this roving
wiretap was envisioned more than any other single area to deal
with the disposable cellular phone wiretap situation. Now, just
because you stop using one of 5, 10, 15, 20 cellular phones
doesn't mean you won't use it again the next minute. So every
single time a cellular phone in which the agents have no idea
where that cellular phone is until it turns on and they have no
idea who's on it until they hear that it's being talked on,
they're not in a position to say we're not going to.
Now, as a practical matter, we are, in fact, looking after
just 10 days of a movement to another phone. So when they go
from phone A to phone B, even if they may go back to phone A,
they're still in front of a judge within 10 days. So there is a
review process envisioned here. There's no question that I
appreciate the gentleman's concern. But I think that his
amendment would clearly undo exactly what we need to maintain.
Now, having said that, our review of the actual use has
found no abuses, but I think that it's very clear here that the
intent of the legislation 4 years ago, the intent of the
reauthorization today requires that you be able to figure out
who's on cell phone number 2, 3, 4, 5, 6, 7, and 8. Even though
that person may not have been on them in 30 days, there is no
reason to believe, particularly if you don't know where it is
until it turns on, that it's not your suspect again.
With that, I would yield back.
Mr. Scott. Would the gentleman yield?
Mr. Issa. I would certainly yield.
Mr. Scott. Should the FBI listen if they actually do not
believe that the phone is going to be used by the target?
Mr. Issa. You know, I think, reclaiming my time, as the
gentleman knows, that when a tap detects something and they're
out--you know, just like on the television, when they're out
there in the truck and they're digitally recording this, and
they discover it's not their suspect, they tune out, they're
done. That is pretty standard. And there has--there is review
of any material that would be captured in which it was clear
that for some period of time they listened beyond knowing that
it wasn't their suspect. So that's well protected within the
law, certainly well protected by the 10-day judicial review of
moving on wiretaps.
But, yes, as a practical matter, if you've got cell phone
number 6 and it hasn't been used in 4 days and it gets turned
back on, you do have to find out who's speaking on it, and you
can't do that by saying, well, I can't do it until I know that
it's our suspect. It's just the opposite. You can't stop
listening until you know it's not your suspect.
And with that I'd yield back.
Mr. Conyers. Mr. Chairman?
Mr. Smith. Any other members who wish to be heard? The
gentleman from Michigan, Mr. Conyers, is recognized.
Mr. Conyers. Mr. Chairman, the gentleman from California's
point is in no way in conflict with the amendment of the
gentleman from Virginia. If you have a good faith--if a phone
goes off for a while, it doesn't mean that you can't continue
to tap it when it goes back on. You know it either is or isn't.
And that is part of a good-faith belief that the target is
actually using the phone during the time it's being surveilled.
So the dramatic example pointed out by my friend from
California in no way contradicts the requirement of having a
good-faith belief, which is provided in the amendment of the
gentleman from California.
Mr. Scott. Would the gentleman yield?
Mr. Conyers. Of course.
Mr. Scott. Thank you, and I thank the gentleman for
yielding. This is the same thing they do in Title 3 wiretaps.
They have to ascertain that the person is actually using the
phone. Otherwise, they have to stop listening.
These phones--this is particularly egregious because you
start this thing out without any probable cause of a crime. You
can place these roving wiretaps wherever.
Mr. Issa. If the gentleman would yield, I would
respectfully disagree. These are similar but not the same as
Title 3. In fact, the PATRIOT Act did not modify these. What
you're seeking to do here is to modify language that was not
created by the PATRIOT Act. The truth is that what we're
relying on is a standard that existed prior to the PATRIOT Act
when it came to how you would monitor. We did go to multiple
and roving, but we didn't change the underlying requirement for
minimization.
Mr. Smith. The gentleman from Michigan has the time.
Mr. Scott. Would the gentleman from Michigan yield?
Mr. Conyers. Certainly.
Mr. Scott. Was there--my understanding was that there was
no minimization requirement in the PATRIOT Act. We created a
roving wiretap, and all this is is a minimization requirement
to ascertain that the person that you're trying to surveill is
the only actually using the phone. Otherwise, without this
amendment, when the person leaves the premises, you keep
listening in. And, you know, if that's your point, then just
say so. You're using it to listen in to anybody that may use
the pay phone on the corner.
Mr. Issa. If the gentleman from Michigan would yield?
Ms. Lofgren. Would the gentleman yield?
Mr. Conyers. Just a moment. Mr. Scott said that if you
didn't have a good-faith belief, you couldn't do it. But if you
do have a good-faith belief, which is all he's asking, that's
about as low a threshold as you can get that it's appropriate.
If the phone's been cut off for a while and it goes back on and
you're listening, and it turns out that it's the same person
that was being surveilled, then you're home free. But good
faith--I don't know--I don't know how we could be talking about
something other than good faith.
I yield to the gentleman from Virginia.
Mr. Scott. Again, I'd just say if you do not believe that
the person is--the target is using the phone, you ought to stop
listening. This says if the applicant believes that the
facility or place is being used or about to be used by the
target of surveillance, that you believe that you're listening
to the target.
Mr. Issa. If the gentleman from Michigan would yield.
Mr. Scott. If you don't believe----
Ms. Lofgren. Could the gentleman yield----
Mr. Scott. If you're listening to everybody, just say so.
Mr. Conyers. The gentlelady from California first, sir,
and----
Ms. Lofgren. I think my colleague from California has
indicated that magically the minimization rules in criminal law
have been transported without language to that effect, as far
as I can recall, into the PATRIOT Act. And I think, you know,
it's possible--I don't know--that the Justice Department has,
in fact, applied the minimization rules to these FISA taps. But
if that's true--that would be good--we ought to put that into
statute and not allow regulatory schemes that could change
depending on who is running the Justice Department to govern
it. And it seems to me that, you know, this--that's what this
amendment would do. We could probably change the words to some
extent if we wanted to, but I think basically that's the intent
of this, and it's an important thing to do.
Mr. Issa. If the gentleman would yield briefly.
Ms. Lofgren. And I would yield back to----
Mr. Conyers. Of course, I yield to my friend from
California.
Mr. Issa. I would say that I'd be happy to readdress this
after the gentleman views the classified minimization that
already exists under FISA so that you can have the comfort
that, prior to the PATRIOT Act, under the existing statute for
FISA we already have its own minimization language and that we
should rely on that, and I would ask us to vote against this.
But I certainly, after you've reviewed that, would be happy
to----
Mr. Smith. The gentleman's time has expired. The question
occurs on the amendment. All in favor say aye? All opposed,
nay?
The nays have it. The amendment is not agreed to. Are
there----
Mr. Scott. A recorded vote.
Mr. Smith. A recorded vote has been requested. The clerk
will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren? Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. [Presiding.] Members in the chamber
who wish to cast or change their votes? The gentleman from
North Carolina, Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 23 noes.
Chairman Sensenbrenner. The amendment is not agreed to.
Are there further amendments?
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. America to H.R. 3199, offered by Mr. Schiff of
California. At the end add the following: Section. Oversight of
National Security Letters. (a) Title 18, United States Code,
Section 2709(e) of Title 18, United States Code is amended by
striking----
Mr. Schiff. Mr. Chairman, I request that the amendment be
deemed as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Mr. Schiff follows:]
Chairman Sensenbrenner. The gentleman from California is
recognized for 5 minutes.
Mr. Schiff. Mr. Chairman, I view this amendment as a
counterpart of the 10-year sunset, and that is, because we have
approved such a long sunset, this would impose more substantial
reporting from the Department of Justice to the Committee and
to the public about the frequency in which certain of these
PATRIOT Act provisions are being utilized, like the national
security letters, like the delayed notification of search
warrants, the 215 section items. And most of what is requested
in this additional reporting are things akin to what the Chair
requested of the Department, but this would routinize the
supplying of this information to the Committee and, where
possible, to the public. In most places what we ask for are
simply the aggregate number of the requests, which doesn't
reveal much about the Department of Justice's investigations.
But it does give the public a sense of how often these tools
are being used. And I think that's important.
I think when the Attorney General, for example, decided to
let the public know that the library provision had never been
used, he did so for good reason: to assuage concerns that
willy-nilly the government was looking for library records.
Similarly, I think this amendment gives us greater
accountability in provisions that will not sunset for 10 years,
or not sunset at all, about how often they're being used should
pose no concern in terms of the nature of the investigation,
doesn't require any revelation of any of the details of an
investigation, but should institutionalize more frequent
reporting. As the Chairman observed in the early part of the
last Attorney General's reign, it was difficult to get
information from the Department of Justice. I found in my
dealings with the current Attorney General a much improved
situation. But given that Attorney Generals change and our
current one may be elevated to the Supreme Court, it would be
wise, I think to institutionalize this kind of reporting
requirement, and I would urge my colleagues to join me in
support this amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Feeney.
Mr. Feeney. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Feeney. Mr. Chairman, once again I raise the same
objections. What we are doing is basically a blanket
requirement in this case that the Federal counterintelligence
agencies during intelligence and spy investigations be forced
to release to Congress as a whole and at times to the public
information about very sensitive investigations.
Now, by the way, Congress has an oversight role here to
play. Every 6 months the Justice Department has got to release
a comprehensive report of every one of these national security
letters. They're available to the oversight Committee with
charge of this, which is the Intelligence Committee.
I can guarantee you that every one of our enemies, both
foreign countries and foreign organizations that would like to
do us harm, will be very sophisticated in reviewing any
information that we're forced to provide. Yes, Attorney General
Gonzales believed that it was appropriate and safe to release
information about the use of library searches. But there may be
times when it simply is not safe. This blanket requirement I
think would endanger the need to protect the level and the
amount and the details of national security investigations, and
for the same reasons as I opposed the former disclosure
requirements, I would suggest that we vote down this amendment
as well.
I yield back my time.
Ms. Sanchez. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Sanchez.
Ms. Sanchez. I move to strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Sanchez. Thank you, Mr. Chairman. I would yield to my
colleague from California, Mr. Schiff.
Mr. Schiff. I thank the gentlewoman for yielding.
I was with the Justice Department for 6 years, and that
doesn't make me an authority on the Justice Department, but I
guess we have a lot of non-authorities on this Committee and I
fit right in.
Yes, there is some conceivable interest in quarters around
the world about how our Justice Department operates. But, you
know, there's a lot of interest in it right here at home among
ordinary, law-abiding Americans, who would like to know how
often our Government is using these extraordinary tools and be
assured that they're not being overutilized.
Much of the information we're requesting is, frankly, far
less detail than the Chairman has requested upon occasion from
the Department. And I don't know what my colleague's experience
has been far on the other side of this particular aisle, but
over the last 4 years, particularly in the early couple years,
when I tried to get information from DOD or DOJ, it was often
excruciatingly difficult. And I think there is a strong
national interest in knowing how often these sections are
utilized. And, again, we're talking about in most cases the
aggregate number of requests, not who they're being made of or
the nature of the investigation, but this is information that I
think we in Congress ought to have and that we generally don't
have. It's information, I think, that the American people ought
to have to assure them that these authorities are not being
overutilized. And I would certainly like to see us not put our
head in the sand and not say, you know, Justice Department,
take these authorities, do with them what you will, we don't
really want to know. We don't want to know.
And that I think is effectively what we're saying here
right now. I'd like to know, I think a lot of us would like to
know, and I think we can know and the American people can know
without any sacrifice to the nature of these investigations.
Frankly, if I were still in the Department, I would err on the
side of letting the public know when it poses no obstacle to
investigations. I think there's a valuable public purpose in
letting the American people know we're safeguarding the very
purpose for which we're fighting this war on terrorism, which
is to preserve our way of life and our freedoms.
With that, Mr. Chairman, I would yield back to my
colleague.
Mr. Issa. Would the gentlelady yield?
Ms. Sanchez. I will.
Mr. Issa. I thank the gentlelady.
I truly appreciate the gentleman's concern. It should be
noted, though, that the Permanent Select Committee on
Intelligence of the House of Representatives gets every bit of
the information that you're now seeking. So with all due
respect, what we're really dealing with is whether we're going
to downgrade it from the Select Intelligence Committee to the
House as a whole, to the people and the enemy at large. And in
fairness, the release from the Attorney General that they had
never used the library provision I hope is the last time that's
ever released to the public. I do not want and I think we all
do not want to have a confident built up by the bad guys that
we, in fact, will allow them to do exactly what they did in
preparation for 9/11 and use libraries without any risk of
being observed.
Ms. Sanchez. Reclaiming my time, I'd like to yield back to
the gentleman from California.
Mr. Schiff. I thank the gentlewoman for yielding. I guess I
disagree with my colleague who thinks it was poor judgment of
the prior Attorney General to let the American people know this
section had not been used and, in fact, would be very rarely
used. The fact of the matter is, if you're a bad guy, you ought
to know that there are grand jury subpoenas that can be used to
get these records, and you can't be assured that they won't be
sought.
But in terms of whether the Congress should know, we didn't
know how often that provision had been used. I would have liked
to have known that before the Attorney General made the
decision to notify the public. And, indeed, much of the time
when we seek in classified form--this has been my experience.
When I've sought classified hearings on the way certain
authorities have been used, I've gotten less information than
was later disclosed publicly by the Justice Department. And
that's excruciatingly frustrating.
So this would give simply a little greater detail to some
of the reporting requirements that are already in the PATRIOT
bill. We're simply expanding some of the notice provisions
about how often the authorities are being used, and really not
going beyond that, and I thank the gentlewoman for yield and
yield back the balance of my time.
Mr. Nadler. Mr. Chairman?
Ms. Sanchez. And I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I'm not going to take 5 minutes.
I just want to say I certainly agree and commend the
gentleman--the amendment offered by the gentleman from
California, and I commend him for offering it, and it's very
simple. The United States is a free country. Every action of
Government is taken in the name of the people of the United
States. We ought to know various things that are being done.
The amendment the gentleman offers is simple: Report to
Congress and to the American people.
The idea that terrorists could profit from this information
is quite far-fetched. To simply say the number of--the number
of national security letters, the number of 215 orders, no
terrorists are going to benefit from that. But this Congress
may benefit from it, the American people may benefit from it.
We ought to know about this increasingly secret Government of
ours. And I urge the adoption of the amendment.
Mr. Schiff. Would the gentleman yield?
Mr. Nadler. Sure.
Mr. Schiff. Mr. Chairman, I'm going to resort to the most
powerful argument I can now make in favor of this amendment,
indeed the most powerful argument I've made in favor of any
amendment today, and that is, if adopted, this will be my last
amendment. [Laughter.]
I can't be more persuasive than that, Mr. Chairman, and I
would be happy to yield back the balance of my time.
Chairman Sensenbrenner. Does the gentleman from New York
yield back?
Mr. Nadler. I will yield to the gentleman from California.
Mr. Issa. Thank you for yielding. I will give you most of
it right here because, as I read further through the actual
criminal procedure, after it says that the Federal Bureau of
Investigation shall fully inform the Permanent Select Committee
on Intelligence of the House of Representatives, it then says
and the Select Intelligence Committee of the Senate and the
Committee of the Judiciary of the House of Representatives and
its counterpart in the Senate.
So, believe it or not, we haven't gotten to the public, but
it is, in fact, a requirement to come to this Committee, and we
do have that information, so hopefully that will give you an
opportunity to look at it in a fully--full compliance that you
may not have been aware you had.
Mr. Schiff. Will the gentleman yield further?
Mr. Nadler. Yes, I'll be happy to yield.
Mr. Schiff. There's no rebuttal to my most persuasive
point. If you accede, this is the last request.
Mr. Nadler. Reclaiming my time, the unstated sentence, of
course--and I do not attribute this to the gentleman; I just
assume he means it--is that if this amendment doesn't pass, he
may have six more amendments.
I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from California, Mr. Schiff.
Those in favor will say aye? Opposed, no?
The noes appear to have it.
Mr. Schiff. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. Those
in favor of the Schiff amendment will as your names are called
answer aye, those opposed no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their votes? The gentleman from Utah, Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 21 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Ms. Jackson Lee. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Mr. Chairman, I have an amendment at the
desk, 132.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Ms. Jackson
Lee of Texas. At the end of Section 8, page 9, line 11, add the
following new subsection: (e) Exclusion of Medical Records.
Section 501(a)(1) of the Foreign Intelligence----
Ms. Jackson Lee. Mr. Chairman, I ask unanimous consent that
the amendment be considered as read.
Chairman Sensenbrenner. The gentleman from North Carolina
reserves a point of order, and subject to his reservation,
without objection, the further reading is dispense with.
[The amendment of Ms. Jackson Lee follows:]
Chairman Sensenbrenner. The gentlewoman from Texas is
recognized for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I know
a few moments ago, maybe minutes or hours ago, one of my
colleagues wanted to ask the question whether or not any
provisions of the PATRIOT Act could be considered
unconstitutional. We've had a number of debates on the floor of
the House that seemingly have drawn the support of Republicans
and Democrats, and I would hope that this amendment would
reflect the same kind of concern for the privacy of Americans.
We certainly know that one provision allows the seizure of
records or any tangible thing, and we have seen America's
libraries and librarians raise their voices in opposition.
We've also seen the work of a collective group of individuals
who respect the privacy of Americans alongside of our
obligation of homeland security.
Our friend and colleague, Congressman Sanders, has taken
this issue of library invasion of privacy and has received the
recognition that it is a problem that should be fixed. In fact,
as it relates to libraries, there have been over 200 formal and
informal requests for materials, including 49 requests from
Federal offices.
This amendment deals specifically with an aspect of
America's privacy that most Americans hold very dear, and that
is medical records. And the definition of this section makes it
clear that these records or any tangible thing can be, if you
will, seized. It provides that the FBI intelligence
investigators with a virtual blank check to seize medical
records with effectively no public accountability.
Section 215 has been known, as I've said, as dealing with
library records. Part of Section 215 gives the FBI the ability
to obtain a court order for any tangible things, including
medical records, in an intelligence or terrorism investigation.
Physicians and other medical professionals who receive 215
court orders are barred from telling patients or anyone else
anything about the court order. What an absurdity. Your own
personal private medical records, and the physician cannot tell
you that your records are being seized.
Furthermore, Section 215 court orders are not limited to a
particular suspect. These requests for records need only be
relevant to an investigation, meaning that patients who are not
even the targets of an investigation will also have their
information vacuumed up by the FBI.
Mr. Chairman, so many of us have had to deal with our elder
relatives in hospitals and nursing homes. You're not even
allowed to call on behalf of your relative because of the new
laws that are governing hospitals governed or receiving Federal
funds all over America unless you are so designated. Even these
institutions cannot give you the status of your relative's
health condition, your child's health condition, unless you
have been so identified. But yet we're allowing innocent
persons to have their records seized.
Let me give you an example and let me cite for you--the
American Medical Association Board of Trustees in May 2005
shows us the impact. Even without hard data, it can be assumed
the PATRIOT Act will cause some patients to avoid seeking care
or to be less than forthcoming in a physician's office. Quality
of care may suffer. Unable to protest or even publicly
acknowledge a disclosure, medical professionals stand to lose
the trust and confidence of their patients and undermine the
patient-physician relationship.
What I am speaking about is the broad breadth of seizure,
not a court-ordered seizure, not a probable cause seizure. I'm
talking about random calling up saying I think I want to get
this doctor's records.
For example, two physicians in Houston--this is an example,
hypothetical--in Houston are competing for the same pool of
patients. One calls the FBI and falsely tells the Bureau that
his rival helped treat one of the 9/11 hijackers that had a
throat infection. The FBI, which is still investigating 9/11
attacks, obtains a secret court order under 215 and gets the
innocent doctor's patients' records. Has nothing to do with
anything. But because of the reach of Section 215 isn't limited
to a particular suspect, the order applies to all of the
doctor's records. They come in, they cull all the records, they
get every single patient's record, launching separate
investigations against every single patient who happens to be a
patient of this doctor who may, for example, be from one of the
so-called communities. Dozens of agents work the case. They go
after many foolish leads, and it comes up with nothing.
Mr. Chairman, my colleagues, this is a very narrow
amendment that protects the privacy. It does not eliminate the
opportunity under a more detailed, a more explanatory----
Chairman Sensenbrenner. The gentlewoman's time has expired.
Ms. Jackson Lee. It does not stop that. I ask my colleagues
to support this amendment.
Chairman Sensenbrenner. Does the gentleman from North
Carolina insist upon his point of order?
Mr. Coble. Mr. Chairman, I withdraw my point of order.
Chairman Sensenbrenner. Okay. The gentleman from
California, Mr. Lungren.
Mr. Lungren. Mr. Chairman, for the reasons already cited
when we had another amendment that went to medical records and
other things to be excluded from the reach of Section 215, I
rise in opposition to this amendment. Once again we've talked
about medical records, how they might be applicable in a
particular situation. We've talked about anthrax. We've talked
about other things. I don't know if we need to belabor the
point here. I think everybody knows what we're talking about.
Once again, remember the reach of 215. It's a FISA court.
You have to be investigating something that deals with foreign
intelligence. That's what we're talking about. If anybody
thinks that the Government is interested in rummaging through
your medical records for no reason at all, I've never seen one
example of it. We're talking about something where people are
trying to find something that is relevant to the investigation
in a terrorism case.
And, once again, we're here because of terrorism. We're
here because of 9/11. We're here because we need those
investigative tools before the fact, not after the fact. Can we
remember that as we look at these amendments? The difference
between going in and doing a criminal investigation after the
fact so that you can go and prosecute people versus trying to
deter terrorist attacks, that's what we're talking about.
London was a tremendous example of what we're facing. And to
somehow believe that we have the foresight to understand all
circumstances where medical records would be irrelevant to
these investigations is assuming an amount of hubris that I
just don't think we ought to.
Once again, I will repeat, the 9/11 Commission criticized
the Congress and the executive branch for a lack of foresight.
They said a lack of creativity, not thinking outside the box.
And here what we're trying to do is get us back in the box
saying the way that things were before 9/11 are the way that
will allow us to be able to fight terrorism. It didn't happen.
It ain't going to happen. And, frankly, there has been no proof
whatsoever of abuse. Why we would take this potential
investigative technique to be used to fight terrorism is beyond
me.
And with that, I would ask for a no vote and yield back the
balance of my time.
Ms. Waters. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Yes, Mr. Chairman, my colleague from California
is using the same arguments he used earlier. They don't sound
any better now than they did then, and I'd yield the balance of
my time to the gentlelady from Texas.
Ms. Jackson Lee. I thank the distinguished gentlelady, and
I appreciate her amendment offered in the same spirit as this
amendment. It seems that clarity still is not apparent even at
this late hour. But I would just say to my distinguished
colleague, it just overwhelms me to make such a broad
statement. I love my country. I really do. I believe dearly in
the Bill of Rights, and I believe dearly in our responsibility
now in security and intelligence and homeland security.
I might commend to him the 9/11 Commission in its broadness
that clearly asked as we proceed to be precise in working
towards laws that we also understand our commitment to liberty
and justice and to limit the broadness of our reach that would
undermine--undermine--our very efforts of securing
intelligence. They talked about not intimidating different
segments of the population, not stigmatizing religion.
Obviously this is an effort to suggest that we narrow the
efforts that we need to make in order to get the kind of right
intelligence. And for my good friend to suggest that he's never
seen an abuse by this Government gives me a great deal of
confusion. I'm completely baffled. I certainly read about it in
the history books when Senator McCarthy held these kinds of
hearings where everybody in America was claimed to be a
communist. So I----
Mr. Lungren. Would the gentlelady yield on that point?
Ms. Jackson Lee. I really don't understand--we do overreach
in many instances, and it does not generate into anything. I
will join my colleague at any moment to ensure that our law
enforcement has the right tools. I only offer this amendment to
my colleagues as my colleague has done--colleagues have done
earlier in the day to simply say to narrow it. This provision
in law is overbroad, this particular section. It has the
potential to cause major violations of private rights
guaranteed under the Fourth Amendment. It gives the Government
far more authority to gather information about innocent
Americans while reducing the ability of Americans to learn what
their Government is doing.
The Congress provided these sunsets in order to allow this
body to give a fresh look at the contentious portions thereof
so that adequate fixes can be made. My hypothetical is a
possibility. It is a possibility. False statements can be made
about patients. FBI can seize patient records and broadly seize
all of a doctor's records, every single patient. And it can
lead to dead ends and, of course, no results. And why not have
medical records excluded under this particular provision? It
does not bar the agent or the investigation from securing
records. If they prove themselves in an open court setting or
some other setting, it does not bar them. These are a secret
process. It violates the privacy and overtakes, if you will,
existing law that has been written to protect the rights of
Americans.
Mr. Lungren. Would the gentlelady yield?
Ms. Jackson Lee. I would argue that--I don't have the time
to yield. I'd ask my colleagues to support this amendment in
its narrow, narrow exclusion of medical records and the
allowance of these records to be excluded, but yet the
investigation to go forward.
Ms. Waters. Reclaiming my time, and I will yield to the
gentleman from California.
Mr. Lungren. I thank the gentlelady for yielding. The
mischaracterization of my statement I'd like to respond to. I
never said that the United States Government has never abused
its powers. I said with the investigations of this Committee
during the course of our many hearings, we have yet to find any
evidence of abuse of the act that is before us that we are
acting on right now, and that was the point that I solely made.
And the gentlelady from Texas talked about the generalization,
and I would just suggest that in our arguments we might bring
them a little more focused into what we have said and the
provisions that are before us. But I thank the gentlelady for
yielding.
Ms. Jackson Lee. May I just have 1 minute, if there is
any----
Ms. Waters. I yield to the gentlelady from Texas.
Ms. Jackson Lee. Let me thank the gentleman for clarifying.
My example was as it was to just generally highlight episodes
in our Government's life and that we should try at this time to
be able to narrow our overreach in the PATRIOT Act. But I will
say this to you: I've heard from many librarians who have
indicated their intimidation by this process and the overreach
of that intimidation.
So I think that we have to look closely, we have to
scrutinize this particular legislation, and the Ranking Member
made it very clear as he started out this morning. We had a
bipartisan bill 2 years or so ago, but it turned out not to be
a bipartisan bill. I hope that now that we can do so. I look
forward to working with the distinguished gentleman from
California, but reaching for medical records without narrowing
it I think is----
Chairman Sensenbrenner. The time of the gentlewoman has
expired. The question is on the amendment offered by the
gentlewoman from Texas, Ms. Jackson Lee. Those in favor will
say aye? Opposed, no?
Ms. Jackson Lee. rollcall.
Chairman Sensenbrenner. The noes appear to have it--
rollcall will be ordered. Those in favor of the Jackson Lee
amendment will as your names are called answer aye, those
opposed no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
[No response.]
The Clerk. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Pass.
The Clerk. Mr. Berman, pass. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there further members in the
chamber who wish to cast or change their vote? The gentleman
from Florida, Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the clerk will report.
The gentlewoman from California, Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 24 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Maryland,
Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. I know the hour is
later, and I'll try and be brief.
Chairman Sensenbrenner. Does the gentleman have an
amendment at the desk?
Mr. Van Hollen. I do, Mr. Chairman.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Van
Hollen of Maryland. Add at the end of the following: Sec. ___.
Terrorist Lists. Section 1001 of the US PATRIOT Act, P.L. 107-
56, is amended----
Mr. Van Hollen. Mr. Chairman, I ask unanimous consent that
further reading of the amendment be dispensed with.
Mr. Gallegly. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California.
Mr. Gallegly. Raise a point of order.
Chairman Sensenbrenner. The gentleman reserves a point of
order. Subject to the reservation, the further reading of the
amendment is dispensed with and the gentleman from Maryland,
Mr. Van Hollen, is recognized for 5 minutes.
[The amendment of Mr. Van Hollen follows:]
Chairman Sensenbrenner. Mr. Van Hollen.
Mr. Van Hollen. Thank you, Mr. Chairman. This is an
amendment to the existing statute, PATRIOT Act statute, Section
1001, regarding certain requirements placed on the Inspector
General of the Department of Justice. And what this does simply
is deal with the terrorist watchlist.
Earlier I offered an amendment that would impose
responsibilities on those individuals who knowingly sold
firearms to individuals on the watchlist, and Mr. Lungren and
others raised the issue about the reliability of those
watchlists and whether or not everyone who was listed on those
lists was properly there. And when we had the Attorney General
testifying on this bill before this Committee, I asked him
about what mechanism was in place for a citizen who had been
mistakenly placed on the watchlist to get him or herself off
that watchlist, and the Attorney General said he's like to work
with us to make sure we did that.
Well, they've been working on that, but the work has been
going rather slowly. Just last month, the Inspector General at
the Department of Justice issued a report regarding the
Terrorist Screening Center. It's a report entitled ``Review of
the Terrorist Screening Center.'' One of the recommendations
they make in that report is to strengthen the procedures for
handling misidentifications and articulate in a formal written
document the protocol supporting such procedures. And they make
other recommendations.
What this amendment does very simply is say within 90 days
of the enactment of this act, let's ask the Inspector General
to report to this Committee on what progress has been made by
the Department in implementing the recommendations by the
Inspector General with respect to having a protocol and having
some set procedure for people who are misplaced, whose names
should not be placed on that list, how they get off the list. I
think we've all heard stories about people who find themselves
on the list, and there's no clear mechanism for how they get
off. And this simply asks for a report on what follow-through
has been made on recommendations by the Inspector General at
the Justice Department.
I would urge members on both sides of the aisle to adopt
the amendment.
Chairman Sensenbrenner. Does the gentleman from California
insist upon his point of order?
Mr. Gallegly. Yes.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Gallegly. Mr. Chairman, I make a point of order that
the amendment is not germane under House Rules. H.R. 3199
reauthorizes certain provisions of the PATRIOT Act and the
Intelligence Reform and Terrorism Prevention Act. House Rule
XVI-7 precludes amendments on a subject different from that
under consideration. This amendment is outside the subject
matter of the legislation we're considering at today's markup.
In addition, the fundamental purpose of this amendment is
inconsistent with the primary purpose of the bill under
consideration and, thus, non-germane under rule--House Rule
XVI-7.
Chairman Sensenbrenner. Does the gentleman from Maryland
wish to speak on the point of order?
Mr. Van Hollen. Yes, Mr. Chairman, I do.
Chairman Sensenbrenner. The gentleman from Maryland.
Mr. Van Hollen. I would just remind my colleague that
earlier today there was an amendment offered by Ms. Lofgren of
California to exactly this same section, which was adopted, I
believe unanimously, on a recorded vote by this Committee. And
my understanding is--and I would press this issue, which is
that the Committee having taken that action with respect to
amending this section in the regard that we did, and I think
you'll find it was on an issue of similar nature, not the exact
same point, that that issue has already been addressed by this
Committee.
So I would ask that we consider this amendment, having, you
know, looked at what the Committee already done--did today and
address it on its merits and make a decision.
Chairman Sensenbrenner. The Chair is prepared to rule.
Because this is an amendment to the material witness part of
the PATRIOT Act, the Chair feels that it is germane and
overrules the point of order, and the question is on adoption
of the Van Hollen amendment.
Mr. King. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
Mr. King. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. The Van Hollen amendment
is brought before us, and we need to recognize that we have
procedures now for removal of the names from the list. And we
could name some of the fairly high-profile people who have been
in the news here recently who have had their name removed from
the list. But if we go forward with this amendment, then we'll
end up with a public report, and the public report will be a
scorecard to the world as to how we're doing with this
particular list, and it might very well add to a lot of
speculation and cause us greater problems than any of us on
either side of the aisle would like to see on this issue.
So I would point out to the gentleman from Maryland that
there is a GAO study. It's ongoing now, and it was requested
approximately last March. It should be concluded sometime in
November or December, at which time it would come back to us,
classified. We'd have access to that report to review it in a
classified setting. I'd be happy to go and review that--in
fact, I think it would be an obligation on my part--and invite
the gentleman from Maryland to do so. If you'd like another
kind of a report to come, a member letter could be submitted to
Justice, and one could achieve this information without being
so public with it.
So that would be the list of my objections to this
amendment, and I'd urge a no vote and yield back the balance of
my time.
Chairman Sensenbrenner. The question is on the Van Hollen
amendment. Those in favor will say aye? Opposed, no?
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further----
Mr. Van Hollen. Mr. Chairman, I would ask for a rollcall on
that.
Chairman Sensenbrenner. A rollcall will be ordered. Those
in favor of the Van Hollen amendment will as your names are
called answer aye, those opposed no, and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. Further members who wish to cash or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. This is my next to
last amendment that's designated A at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.r. 3199 offered by Mr. Nadler of
New York.
Insert in the appropriate place in the bill the following:
Section ___. Right to Counsel
(1) In General--Section 2709 of Title 18, United States
Code, is amended by inserting----
(a) Authority to Disclose to Qualified Persons
(1) Any person to whom an order is directed----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentleman from New York is
recognized for 5 minutes.
[The amendment of Mr. Nadler follows:]
Mr. Nadler. Thank you. Mr. Chairman, I'll be very brief.
This amendment amends Section 505 dealing with national
security letters, and essentially puts into that section the
same language the Chairman put into the Section 215 in the main
bill.
It does two things. It says that when you have Section 505,
a national security letter with respect to the non-disclosure
of the gag order, you can disclose it to your attorney and you
can disclose it to someone else in your company to whom
disclosure is necessary in order to comply with the order.
The language is essentially taken from the language that is
in the bill in Section 215, and the thought is the same reason
the bill puts this into Section 215, it ought to put it into
Section 505. You should be able to disclose the contents of the
national security letter to whoever it's necessary to disclose
it to in order to get the letter complied with if it's someone
else in your company; and two, to your attorney so that they
can give you legal advice. And anyone you disclose it to is
bound by the same gag order.
So it's the same reasoning and the same language as in
Section 215, the same purpose, and I would hope it would be
accepted, and I yield back.
Mr. Flake. Would the gentleman yield?
Mr. Nadler. Yes, I will.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Nadler. Did you want me to yield before I yield back?
Mr. Flake. Yes.
Mr. Nadler. I'll yield to the gentleman.
Mr. Flake. This won't take long. I don't have the language
drafted. We have some of the same concerns. We worked on some
of the same concerns, so it's not surprising. But I am working
on a floor amendment that would address the same concerns that
you're looking at here. I can't give you specific on it. I
won't offer it here, but I'd be glad to work with you on one
for the floor.
Mr. Nadler. Reclaiming my time, assuming this amendment--
well, whether or not this amendment doesn't pass, I'll be happy
to work with you as we go to the floor.
But I would hope this amendment would be accepted. The
language is taken verbatim, just about verbatim from Section
215 in the bill. And obviously, it is necessary, and 215 is
necessary here.
Mr. Flake. If the gentleman will yield, I'm still working
on language. I'm not prepared to support this, but I would be
glad to work with the gentleman on the amendment I'm working on
for the floor.
Chairman Sensenbrenner. Gentleman yield back?
Mr. Nadler. I yield back.
Chairman Sensenbrenner. Question is on the Nadler
amendment. Those in favor will say aye.
Opposed no.
The noes appear to have it.
Mr. Nadler. I ask for the yeas and nays.
Chairman Sensenbrenner. rollcall will be ordered. Those in
favor of the Nadler amendment will, as your names are called,
answer aye; those opposed, no; and the clerk will call the
roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
[No response.]
The Clerk. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
[No response.]
The Clerk. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their votes? Gentleman from California, Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Chairman Sensenbrenner. Gentleman from Virginia, Mr.
Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Gentleman from Texas, Mr. Smith?
Mr. Smith. Mr. Chairman, I vote no.
The Clerk. Mr. Smith, no.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. Gentleman from Wisconsin, mr.
Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Chairman Sensenbrenner. Gentlewoman from California, Ms.
Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Chairman Sensenbrenner. Gentleman from California, Mr.
Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Chairman Sensenbrenner. Further members who wish--gentleman
from Utah, Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Chairman Sensenbrenner. Gentleman from Alabama, Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes?
Ms. Jackson Lee. Mr. Chairman, how am I recorded?
Chairman Sensenbrenner. How is the gentlewoman from Texas
recorded?
The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as an
aye.
Ms. Jackson Lee. Thank you.
Chairman Sensenbrenner. The clerk will report.
Gentleman from Ohio, Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 16 ayes and 23 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
Humanitarian Assistance.
The Clerk. Amendment to H.R. 3199 offered by Mr. Scott of
Virginia.
Add at the end the following:
Section ___. Humanitarian assistance under the material
support statute.
Section 18 USC Subsection 2339A is amended by striking ``or
religious materials'' in section (b) and inserting----
Chairman Sensenbrenner. By unanimous consent, the amendment
will be considered as read, and the gentleman from Virginia
will be recognized for 5 minutes.
[The amendment of Mr. Scott follows:]
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, this is
under the material support prohibition, that you can't give
material support to terrorist organizations. This would allow
normal humanitarian assistance during times of a natural
disaster or other humanitarian situations to people in
countries or territories that may be controlled by individuals
or groups on watch lists or other designations which would
constitute or at least raise the possibility of a violation of
material support prohibition.
There's no logical reason that you could provide medicines
but not medical services or drinking water or food to people
when those services or materials could not be diverted to
military ends.
I would hope it would be the pleasure of the Committee to
adopt the amendment.
Mr. King. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from Iowa, Mr. King.
Mr. King. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. I thank the Chairman.
The gentleman from Virginia's amendment goes--does a number
of things here that I don't know that this Committee can
support, and one of them is it simply gives legitimacy to the
terrorist organizations, and by opening up the door to send
more money and more relief and funnel it through the terrorist
organizations--and we're talking about terrorist organizations
like Abu Nidal, Ansar al-Islam, Al-Aqsa Martyrs Brigade, the
Armed Islamic Group, the--it gets worse--Hamas, Hezbollah,
Islamic Jihad, al-Jihad, al Qaeda, and the al Qaeda
organization in Iraq, all part of the 41 terrorist
organizations. And to give them this form of legitimacy and
open this door up, where it's fairly closed right now, I mean
to add to this, to add to the religious materials and medical
supplies, services, drinking water, food, children's clothing.
But the problem with this is the catch-all, the services
and other humanitarian materials and services that could not be
diverted to military ends. That's everything but guns and
bullets by that definition.
And if you recall, our President, shortly after September
11th, made the statement that if you harbor terrorists you are
a terrorist, if you fund terrorists you are a terrorist. And
these are terrorist organizations. This is funding that goes to
terrorist organizations. We would be funding terrorist
organizations with this amendment. It's not just the Republican
side of the aisle that makes those kind of statements, but the
President's is--I would just simply quote. ``International
terrorist networks make frequent use of charitable or
humanitarian organizations to obtain clandestine financial and
other support for their activities.'' This could be a loophole
through which support could be provided to individuals or
groups involved with terrorism.
Concurring with the President's view would be Senator
Dianne Feinstein, who said, in part, ``I simply do not accept
that so-called humanitarian works by terrorist groups can be
kept separate from their other operations. I think the money
will ultimately go to bombs and bullets, rather than babies, or
because money is fungible, it will free up other funds to be
used on terrorist activities.''
For that reason and many others, I urge the defeat of this
amendment, and I would yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment--
--
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from New York.
Mr. Nadler. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Nadler. Mr. Chairman, I believe this is a very
interesting amendment, and I yield to the gentleman from
Virginia.
Mr. Scott. Thank you, Mr. Chairman. I would say that what
we're doing is amending an existing statute which allows
religious materials and medicines to be given to all of those
groups that have been indicated. That's present law. What we're
doing is just extending what you can give in disaster
situations or otherwise, medical services, drinking water,
children's clothing and other humanitarian services.
I mean if you can give religious materials and medicines,
you ought to be able to give water to the same groups that
you've listed. That's the present law. And in a disaster, you
know, some people may not want to give water or other
humanitarian assistance because they may be committing a crime,
and I can't believe that that's our intent. I'd hope we'd adopt
the amendment so we can provide some humanitarian aid in
disasters to people in need.
Mr. Lungren. Will the gentleman yield?
Mr. Nadler. Reclaiming my time, I'll yield to the gentleman
from California.
Mr. Lungren. I would just ask the gentleman from Virginia
whether or not he accepts the argument of fungibility of funds?
That is, being able to use----
Mr. Nadler. I yield to the gentleman from Virginia.
Mr. Scott. If the gentleman would yield, I would say that
you've got medicines, religious materials and other things
already under the law. And yeah, I guess, instead of--if people
are dying of thirst and you provided some water, maybe that
would be fungible, but I think under the circumstances, just
humanitarian circumstances, you ought to be able to provide
humanitarian aid without being charged with a crime.
Mr. Nadler. Reclaiming my time, I'd like to ask the
gentleman, to whom are you supplying this under this amendment?
I'll yield.
Mr. Scott. I'd say to the gentleman, the same people you
are under Section 18 USC 2339A, whoever you're--with the
exceptions there of religious materials, medicines and things
like that. We're just adding to the things that you can give
under that same section. We're just having a few more
exceptions like water and children's clothing and humanitarian
aid.
Mr. Nadler. I thank the gentleman. I yield back.
Chairman Sensenbrenner. Gentleman from Wisconsin.
Mr. Green. Move to strike the last word.
Chairman Sensenbrenner. Gentleman's recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. I rise in opposition to
this amendment as well, and for many of the same reasons that
my friend and colleague from Iowa has laid out.
First off, it's far too broadly drafted. It is a catch-all.
For example, the use of educational supplies, well, we were
particularly trying to get at with the material support
statutes the provision of intellectual support and educational
material that could in fact be of assistance to terrorists.
Also, when you make reference to other humanitarian materials
and services, that is a large catch-all. All of these materials
are fungible. But there's another important point here. We
don't want to add legitimacy or credibility to these
organizations, and I think we do that if we start broadening
what it is that can be supplied to them under the statute.
I think it's a tremendous mistake. I think we should keep
it narrow as it is. I'm not aware of there being any problems
have been identified. If the gentleman can name circumstances
where these organizations or individuals were in need and we
were not able to help them under the previous statute, I'd
certainly be willing to listen. Beyond that, I just think this
amendment is opening up a dangerous door. It's far too broad,
and I think it would be a step in the wrong direction.
With that I yield back.
Chairman Sensenbrenner. The question is on the Scott
amendment. Those in favor will say aye. Opposed no.
The noes appear to have it. The noes----
Mr. Scott. Recorded vote, please?
Chairman Sensenbrenner. Recorded vote will be ordered. All
those in favor of the Scott amendment will, as your names are
called, answer aye, those opposed no, and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
[No response.]
Ms. Jackson Lee. How am I recorded? Are they in the middle
of the vote?
The Clerk. Mr. Chairman, Ms. Jackson Lee is not recorded.
Ms. Jackson Lee. Aye, please.
The Clerk. Ms. Jackson Lee, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members in the chamber who wish to
cast or change their vote? Gentleman from Arizona, Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Chairman Sensenbrenner. Gentlewoman from California, Ms.
Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 7 ayes and 31 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Let me say that I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Mr. Chairman, I have two amendments from Ms.
Jackson Lee.
Ms. Jackson Lee. Enhanced review.
The Clerk. Amendment to H.R. 3199 offered by Ms. Jackson
Lee.
At the end of the bill, add the following section:
Section ___. Enhanced Review of Profiling and Data
Collection.
Section 1001 of the USA PATRIOT Act is amended by:
(1) adding after ``(1)'' the following: ``(a)''; and
(2) adding after ``Department of Justice'' the following:
Ms. Jackson Lee. I ask the amendment to be considered as
read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment of Ms. Jackson Lee follows:]
Ms. Jackson Lee. Colleagues, I'll be very brief. I just
want----
Chairman Sensenbrenner. The gentlewoman's recognized for 5
minutes.
Ms. Jackson Lee. --refer you to an informational piece that
this amendment would allow us to operate under the guidelines,
under the Attorney General's guidelines on general crimes,
racketeering enterprise and domestic security terrorism, dated
March 21, 1989.
I would think under the 9/11 Commission Report, one of the
things that it included in its report was to sensitize
Americans and sensitize our need to understand diverse
cultures. We cannot understand diverse cultures as they believe
that our attempt to be secure racially profiles their
communities.
In 1989 Attorney General Dick Thornburgh approved new
guidelines for how the FBI would pursue domestic security and
terrorism. Those guidelines recognized investigations into
domestic activities as something necessary----
Chairman Sensenbrenner. The gentlewoman will suspend. The
Committee is not in order. If we can quiet things down and
listen to the eloquence of the gentlewoman from Texas, maybe we
can get done quicker.
The gentlewoman will proceed.
Ms. Jackson Lee. I thank the Chairman.
But it said that limits--but that limits and protections
were needed to ensure the constitutional rights of average
Americans. However, in 2002, Attorney General Ashcroft extended
these guidelines in a way that clearly intruded on Americans'
First Amendment Right to speak and peacefully assemble and
other constitutional protections.
Most importantly, the 2002 guidelines now allow the FBI to
monitor even peaceful rallies, protests and meetings of
religious, political and social without any suspicion of
wrongdoing.
My amendment is simple. It would like to ensure that we
follow the guidelines, that even as we seek to provide homeland
security or security and intelligence by securing information,
that we not recklessly invade the concept, or overlook the
concept of racial profiling. It asks for a review of the use of
any investigative authority on the Attorney General's
guidelines, and in so doing, it helps us to protect innocent
individuals who happen to be of a particular faith or racial
background.
Since 2002 these new powers have been used by the FBI to
spy on mosques, and to try to infiltrate Muslim and Arab groups
in ways that clearly implicate the First Amendment.
I believe that as 9/11 Commission Report indicated, we can
be safe but also protect civil liberties.
Mr. Chairman, I was also going to offer an amendment that
would investigate the results of FISA authorizations as to the
number of convictions or deportations that occurred. I will not
offer that amendment. I will hope to work with Committee staff
to try and refine that. It's an investigatory tool that
classified information can come back to the Congress to see how
effective FISA has been in terms of criminal proceedings or
removal proceedings. But I go back to this amendment, and
simply ask my colleagues to support it.
And I commend to them an article in the Washington Times,
knowing that our British friends have gone through a very
serious tragedy over the last couple of days, but out of that
tragedy the article says, Britons favor tracking Muslim
activities. We know that danger and terrorist activities
generate a focus on particular religious groups and particular
ethnic groups. This amendment gives us the investigatory tool
to ensure that if there is racial profiling, we are finding a
way to thwart it. And so I hope my colleagues would support
this amendment.
Mr. King. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
Mr. King. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. Consistent with the
sentiment of the gentlelady from Texas's amendment, and also
consistent with the due diligence oversight that's being led by
this Committee, by the Chairman and the Ranking Member, the
Inspector General is doing a larger investigation which
includes this amendment. It's a larger investigation, but
inclusive of the gentlelady from Texas's amendment, which is
before us.
They've testified here in this Committee, and that report
is due here in about a month. So it would be my opinion that
we're better off to wait a month and get the report that's on
the way, than pass an amendment that would simply confuse the
issue, and so I'd urge a no vote on the gentlelady's
amendment----
Ms. Jackson Lee. Will the gentleman yield?
Mr. King. I would yield. I would yield.
Ms. Jackson Lee. I thank the distinguished gentleman.
Chairman, the room is not in order.
Chairman Sensenbrenner. The Committee will be in order. The
gentlewoman is recognized.
Ms. Jackson Lee. I thank the tone of the distinguished
gentleman's remarks, and I was made aware that there was a
Inspector General's Report on its way to Congress. My interest
is that by including it in this legislation, this language, it
allows us to have a continuing report and a continuing
monitoring in a classified manner.
Respect the gentleman's acknowledgement that a report may
be forthcoming, but I would suggest to him that as we pass the
PATRIOT Act, it is going to be part of the fabric of our
society. There will be ongoing opportunities for individuals to
be targeted, and/or for racial profiling or religious profiling
to go on.
We can be secure without such profiling. I think it's
appropriate to remind the Attorney General and others engaged
in this process to follow those guidelines ongoing. So I'd ask
my colleagues----
Mr. King. Reclaiming my time.
Ms. Jackson Lee. I yield back.
Mr. King. I thank the gentlelady from Texas.
You know, we have a report that's coming before us that we
have without the requirement of legislation to get that report,
and I suggest we receive the report in about a month, review
the report, make a decision at that time as to whether we need
some permanent fixture in statute, and I'd urge a no vote on
the amendment.
Yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentlewomen from Texas, Ms. Jackson Lee. Those
in favor will say aye. Opposed, no.
Noes appear to have it.
Ms. Jackson Lee. rollcall.
Chairman Sensenbrenner. rollcall will be ordered. Those in
favor of the Jackson Lee amendment will, as your names are
called, answer aye; those opposed no; and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. No.
The Clerk. Mr. Hyde, no. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
Mr. Bachus. No.
The Clerk. Mr. Bachus, no. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Mr. Weiner?
Mr. Weiner. Pass.
The Clerk. Mr. Weiner, pass. Mr. Schiff?
[No response.]
The Clerk. Ms. Sanchez?
Ms. Sanchez. Pass.
The Clerk. Ms. Sanchez, pass. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their votes? Gentlewoman from California, Mrs. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Chairman Sensenbrenner. Gentleman from New York, Mr.
Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Chairman Sensenbrenner. Gentlewoman from California, Ms.
Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes?
[No response.]
Chairman Sensenbrenner. If not, the clerk will report.
Gentlewoman from Florida, Ms. Wasserman Schultz?
The Clerk. Mr. Chairman, I don't have Ms. Wasserman
Schultz.
Ms. Wasserman Schultz. If I could be recorded as aye,
please.
The Clerk. Ms. Wasserman Schultz, aye.
Chairman Sensenbrenner. Clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 25 noes.
Chairman Sensenbrenner. The amendment is not agreed to. Are
there further amendments?
Mr. Conyers. Mr. Chairman, I ask unanimous consent to speak
out of order?
Chairman Sensenbrenner. The gentleman strikes the last
word, is recognized for 5 minutes.
Mr. Conyers. Mr. Chairman, we've been here nearly 12 hours.
I am going to announce my intention after the next amendment to
call for the previous question, because most of the members
here who have additional amendments have agreed to hold them in
abeyance so that we can move on tomorrow, having disposed of
this measure. And I propose further that all of us who do have
amendments, including myself, will be able to put them in the
record collectively, indicating how--why they're important and
how we would have voted on them. And I ask that cooperation of
my colleagues, so that we may complete another very full round
of hearings in the morning.
Thank you.
Chairman Sensenbrenner. Are there further amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler?
Mr. Nadler. Mr. Chairman, I have an amendment at the desk.
Mr. Scott has an amendment at the desk. I ask unanimous consent
they be considered together.
Chairman Sensenbrenner. The clerk will report the
amendments first.
The Clerk. Mr. Chairman, I have two Nadler amendments,
and----
Mr. Nadler. The one he's going to hand you.
The Clerk. Amendment to H.R. 3199----
Mr. Nadler. 19--99, I'm sorry. You're right. You're right.
The Clerk. Offered by Mr. Nadler of New York. Insert at the
appropriate place in the bill the following: Section ___.
Judicial Review. (a) In general. Section 2709 of title 18,
United States Code, is amended by--(1) redesignating subsection
(e) as subsection (g); and (2) inserting after subsection (d)
the following: (e) Judicial Review. (1) Request. Not later than
20 days after any person receives a request pursuant to
subsection (b), or at any time before the return date specified
in the request, whichever period is shorter, such person may
file, in the district court of the United States----
Mr. Nadler. Mr. Chairman, I ask unanimous consent to waive
the reading of this amendment.
Chairman Sensenbrenner. The gentleman from North Carolina
reserves a point of order. Without objection, the amendment is
considered as read.
[The amendment of Mr. Nadler follows:]
Chairman Sensenbrenner. Is there a second amendment that
the gentleman wishes to consider en bloc?
Mr. Nadler. The second amendment is by Mr. Scott.
Chairman Sensenbrenner. The clerk will report the second
amendment. Without objection--well, the clerk will report the
second amendment.
The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of
Virginia. Add at the end the following: Section 9. Factual
basis for pen register and trap and trade authority under
Section 214 of the USA PATRIOT Act. (a) Application.
Subsection----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment of Mr. Scott follows:]
Chairman Sensenbrenner. Without objection, the amendments
are considered en bloc. The gentleman from New York is
recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman. I won't take 5
minutes. I will talk about the first amendment.
Mr. Chairman, I mentioned on an earlier amendment that
under a Federal court decision under applicable Federal case
law, Section 505 of the PATRIOT Act is unconstitutional on two
grounds: one, which the earlier amendment attempted to deal
with, was that the gag order had to be approved by a judge;
otherwise, it was a violation of the First Amendment; second of
all, that an order for a national security letter has to be
subject to judicial review, or else it would be
unconstitutional under the Fourth Amendment search and seizure
provision.
What this amendment does is say that the recipient of a
national security letter from the FBI can go to Federal
district court and move to quash it and the court has to rule
on that. In other words, it provides for judicial--for the
possibility of judicial review of a national security letter.
That's all it does, and without this amendment, frankly, I
think the courts will, in fact, hold this half of Section 505
unconstitutional. So I urge the adoption of this amendment.
I yield back.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.--
does the gentleman from North Carolina insist on his point of
order.
Mr. Coble. I'll withdraw my point of order, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. Mr. Chairman, I have the same issue that I had
with the last amendment. I'm working on a more comprehensive
amendment here on the national security letter, and I share the
gentleman's concerns, but I object for the same reasons. I'm
working on something more comprehensive.
I yield back.
Mr. Nadler. The question is on the amendment----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, on the second half of this en bloc
amendment, I'd like to make a comment. Move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, in fact, this section deals with
pen register and trap and trace authority. The present law
requires a judge to issue the order upon the certification of
the applicant that the information is relevant to an
investigation. This would require the applicant to make a
statement of facts relied upon by the applicant to justify his
belief that it's relevant and requires the judge to find
sufficient facts to justify that belief that information likely
to be obtained as foreign intelligence information not
concerning a United States person and is relevant to the
ongoing investigation of international terrorism or clandestine
intelligence activities.
Mr. Chairman, when you talk about trap and trace authority
and pen register authority, you're talking about a situation
without probable cause, but you do require articulable
suspicion. In 2000, this Committee voted overwhelmingly to
raise the standard for pen register and trap and trace devices
from a mere claim of relevance to a showing of specific and
articulable facts. This amendment does that. And when we're
talking about the information you get with the traditional pen
registers, you get just phone numbers. When you expand this to
electronic and e-mail type situations, you get a lot more
information.
For example, if you get the header from an e-mail, you can
get an entire organization's electronic mailing list. You can
get the Web page that someone reads. You can find out what they
searched for. You can find out what pages they read or what
information was on that Web page. All of that without probable
cause of a crime being committed.
I would hope, Mr. Chairman, that we would require at least
the articulable facts on which you are relying so that this
information, which could be information of an innocent party
relevant to somebody else's investigation, your personal
information is being discovered, I would hope you'd do that at
least on some articulable facts, not just on a representation.
And so, Mr. Chairman, I would hope we'd adopt the amendment and
do what we did in 2000 to require those articulable facts to be
articulated.
I yield back.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
In response, I do rise in opposition to this amendment.
First of all, the judge always has discretion when it comes to
credibility of the witness before him, so the certification in
this situation should be adequate, especially since we're
talking about a pen register and trap and trace, and as the
fine gentleman pointed out, we're talking about phone numbers,
numbers that have emanated--calls that have emanated from those
numbers and are going to those numbers. There's no conversation
involved. The Supreme Court, the very Supreme Court that has
been able to read in privacy rights to the Constitution that I
can turn it every which way and have trouble finding,
nonetheless has found there is no privacy right or interest in
and to the content of the pen register or the trap and trace
information. Accordingly, there is a lesser standard there.
And I appreciate the gentleman's wishing to insert that the
judge must find sufficient facts to justify the belief. The
rest of the language after that is redundant. But, nonetheless,
since there is no privacy right and interest in and to that
information, we believe that it's adequate.
What can be done once they find those numbers, if calls are
coming to or from known terrorists, then that may give rise to
probable cause, and then certainly we need probable cause to go
forward and get warrants and things of that nature. But that is
why I would urge my colleagues to vote against the amendment?
Mr. Scott. Would the gentleman yield?
Mr. Gohmert. I yield back.
Chairman Sensenbrenner. The gentleman yields back. The
question is on--the question is on the amendment----
Mr. Schiff. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I won't take 5 minutes, Mr. Chairman, and
actually I know we're going to call the question, so I want to
speak very briefly on final passage. We've made some very
modest changes to the bill today. I'd like to see more done. It
strikes a stronger balance in both giving law enforcement the
capability of investigating and prosecuting terrorism, but also
provides greater civil liberties protections which do not in
any way inhibit the Government's ability to go after
terrorists. I'm hoping the bill will be improved on the floor
and in subsequent legislation. I intend to pass on final
passage out of the Committee in the hopes that we have
additional improvements on the floor as this bill moves
forward, and I thank the----
Mr. Berman. Would the gentleman yield? Would the gentleman
yield?
Mr. Schiff. I'd be happy to yield to my colleague from
California.
Mr. Berman. Yeah, I want to--I have very much the same
thoughts about this as the gentleman from California. Maybe
that's why we're both from California, except there are others
who have different thoughts. But there are just two--one
specific--there are a couple of specific things I just wanted
to mention for taking the same view as Mr. Schiff. One is one
part of this bill that makes an improvement over existing law
is the incorporation of a relevance standard in 215, as well as
some of the procedural things, although they could be in my
view better.
But I do hope between now and the floor, I believe there is
something between the relevance standard and--but far more
expansive than linking these--the subpoena for business records
with just specific facts dealing with an agent of a foreign
power; that is, there are people associated with these agents
of a foreign power and people we believe--we have reason to
believe are agents of a foreign power that should be included,
but is less broad and all-encompassing than a relevance
standard. And I am hoping that between now and the floor there
can be effort, a real effort, a bipartisan effort to find an
appropriate standard that lets law enforcement do what they
need to do in conducting an investigation, gathering the
records to prevent and deter terrorist acts, and at the same
time not allow an open-ended, perhaps relevant but very
unrelated to the purposes of a legitimate investigation, sweep-
up of those records. And I must prefer changing that standard
than carving out exemptions for libraries or exemptions for
bookstores or exemptions for medical records, which in some
cases may have information very directly related to an agent
for a foreign power.
So I'm hoping that between now and the floor there are some
more things that can be done, as well as tomorrow in the other
legislation we're marking up, and I agree with the gentleman
from California.
Ms. Lofgren. Would the gentleman yield?
Mr. Schiff. I'd be happy to yield.
Ms. Lofgren. I would just like to encourage the gentleman
from California, Mr. Berman, in his efforts to change the
relevance standard. I think it's extremely important. I'm not,
certainly, prepared to support this measure until that is
addressed, and hopefully you will succeed in your effort. And
if there's anything I can do to assist, I would be happy to do
so.
However, I also believe that there are some carve-outs in
addition to the change of the relevance statute that we should
look at, especially since the--there is a chilling effect on
First Amendment exercise today, whether or not the--and the
Justice Department says they have never used it for a library.
I have no reason to disbelieve that. But Americans believe that
they have, and it chills the exercise of First Amendment. And I
think that is ample reason to pay attention since there is
another way to get information. And I thank the gentleman for
yielding and look forward to working with you between now and
the floor.
Mr. Schiff. I yield quickly to the gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman. Thank you. And I just
wanted to comment on the gentleman from Texas, who pointed out
the phone numbers. But this is more than just phone numbers.
This is e-mail addresses where you can get--if you get the e-
mail, you can get all the addresses on it. You can really get
somebody's entire mailing list. And if you get the Web page
somebody's looking at, you can find out what they were
searching for, what they read, what page they read. I mean,
you're getting some mighty good content when you get the Web
page, the total address of the Web page.
You need more than just a little certification of
relevance, and it's not just the terrorist information.
Anything relevant to the investigation. That could be some
innocent people's information. You ought to need more than
just----
Chairman Sensenbrenner. The time of the gentleman from
California has expired.
The question is on agreeing to the amendments en bloc
offered by the gentleman from New York, Mr. Nadler. Those in
favor will say aye? Opposed, no?
The noes appear to have it. The noes have it, and the
amendments are not agreed to.
Are there further amendments?
[No response.]
Chairman Sensenbrenner. If there are no further amendments,
the question occurs on the motion to report the bill H.R. 3199
favorably as amended. A reporting quorum is present. All in
favor will say aye? Opposed, no?
Mr. Conyers. Mr. Chairman, I request a recorded vote.
Chairman Sensenbrenner. The ayes appear to have it. A
recorded vote is ordered. Those in favor of the motion to
report the bill favorably as amended will as your names are
called answer aye, those opposed no, and the clerk will call
the roll.
The Clerk. Mr. Hyde?
Mr. Hyde. Aye.
The Clerk. Mr. Hyde, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
Mr. Berman. Pass.
The Clerk. Mr. Berman, pass. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
Mr. Schiff. Pass.
The Clerk. Mr. Schiff, pass. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there further members who wish
to cast or change their vote? The gentleman from Texas, Mr.
Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Chairman Sensenbrenner. Further members--the gentleman from
Texas, Mr. Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 23 ayes, 14 noes, and
two pass.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute----
Mr. Scott. Mr. Chairman, reserving the right to object, and
I'd ask under the reservation whether or not we can put
information into the record at this point.
Chairman Sensenbrenner. If the gentleman will allow me to
request permission for members to include additional,
dissenting, or minority views, that's the way you do it.
Mr. Scott. Unanimous consent to enter into the record a
document.
Chairman Sensenbrenner. There is a unanimous consent
presently pending. Does the gentleman withdraw his reservation?
Mr. Scott. I withdraw.
Chairman Sensenbrenner. Without objection, the bill will be
reported favorably to the House in the form of a single
amendment in the nature of a substitute incorporating the
amendments adopted here today.
Without objection, the staff is directed to make any
technical and conforming changes, and all members will be give
2 days as provided by the House Rules in which to submit
additional, dissenting, supplemental, or minority views.
For what purpose does the gentleman from Virginia seek
recognition?
Mr. Scott. Mr. Chairman, I ask unanimous consent for a
document outlining some problems with the PATRIOT Act prepared
by the Democratic Staff.
Chairman Sensenbrenner. Without objection, the document
will be included in the record at this point.
[The information follows:]
Chairman Sensenbrenner. Pursuant to the authority granted
the Chair earlier today, the Committee stands in recess until
9:30 tomorrow.
[Whereupon, at 9:45 p.m., the Committee recessed, to
reconvene at 9:30 a.m., Thursday, July 14, 2005.]
DISSENTING VIEWS TO H.R. 3199, THE ``USA PATRIOT AND INTELLIGENCE
REFORM REAUTHORIZATION ACT OF 2005''
We dissent from the passage of H.R. 3199 in its present
form.
We oppose this legislation for several reasons. First, we
never have been given the facts necessary to fully evaluate the
operation of the PATRIOT Act. Second, there are numerous
provisions in both the expiring and other sections of the
PATRIOT Act that have little to do with combating terrorism,
intrude on our privacy and civil liberties, and have been
subject to repeated abuse and misuse by the Justice Department.
Third, the legislation does nothing to address the many
unilateral civil rights and civil liberties abuses by the
Administration since the September 11 attacks. Finally, the
bill does not provide law enforcement with any additional real
and meaningful tools necessary to help our nation prevail in
the war against terrorism. Since 2002, 389 communities and
seven states have passed resolutions opposing parts of the
PATRIOT Act, representing over 62 million people.\1\
Additionally, numerous groups ranging the political spectrum
have come forward to oppose certain sections of the PATRIOT Act
and to demand that Congress conduct more oversight on its use,
including the American Civil Liberties Union, American
Conservative Union, American Immigration Lawyers Association,
American Library Association, Center for Constitutional Rights,
Center for Democracy and Technology, Common Cause, Free
Congress Foundation, Gun Owners of America, Lawyers' Committee
for Civil Rights, National Association for the Advancement of
Colored People (NAACP), National Association of Criminal
Defense Lawyers, People for the American Way, and numerous
groups concerned about immigrants' rights.\2\
---------------------------------------------------------------------------
\1\ A Complete List of Communities That Have Passed Resolutions, is
available at http://www.aclu.org/SafeandFree/
SafeandFree.cfm?ID=11294&c;=207 (last checked July 18, 2005). Colorado,
Montana, Idaho, Maine, Vermont, Alaska, and Hawaii have all passed
statewide resolutions. Resolutions have also been passed in such
communities as Lincoln, Nebraska; Des Moines, Iowa; Savannah, GA;
Pittsburgh, PA; Dallas, TX; New York, New York; Atlanta, GA; Portland,
Oregon; Philadelphia, PA; Dillion, Montana; and Detroit, Michigan.
\2\ Other groups opposing the PATRIOT Act include the American-Arab
Anti-Discrimination Committee, American Association of Law Libraries,
American Baptist Churches USA, American Humanist Association, American
Policy Center, Americans for Tax Reform, Arab American Institute, Asian
Americans for Equality, Asian American Legal Defense & Education Fund,
Association of American Physicians and Surgeons, Association of
Research Libraries, Bill of Rights Defense Committee, Center for Human
Rights and Constitutional Law, Center for Justice and Accountability,
Center for National Security Studies, Chicago Committee to Defend the
Bill of Rights, Commission on Social Action of Reform Judaism, Consumer
Action, Doctors for Disaster Preparedness, Electronic Privacy
Information Center, First Amendment Foundation, F.I.R.S.T. Project,
Inc., Friends Committee on National Legislation, Hate Free Zone
Campaign of Washington, Immigrant Defense Project of the New York State
Defenders Association, Immigrant Legal Resource Center, International
Institute of Boston, Japanese American Citizens League, Korean Resource
Center, Latin American Integration Center, Lawyers Committee for Human
Rights, League of United Latin American Citizens, Mennonite Central
Committee U.S., Washington Office, Mexican American Legal Defense and
Educational Fund (MALDEF), Multiracial Activist, National Asian Pacific
American Legal Consortium, National Coalition Against Repressive
Legislation, National Council of La Raza, National Employment Law
Project, National Immigration Law Center, National Lawyers Guild, New
York Immigration Coalition, Northwest Immigrant Rights Project, OMB
Watch, Organization of Chinese Americans, Police Accountability
Project, Presbyterian Church USA, Washington Office, Special Libraries
Association, Square One Media Network, Unitarian Universalist
Association of Congregations, United Electrical, Radio and Machine
Workers of America, Washington Defenders Immigration Project, Women
Against War Young Korean-American Service & Education Center (YKASEC).
In addition, a new coalition of conservative and liberal groups have
come together to urge increasing checks and balances on the powers the
government already has: Association of American Physicians and
Surgeons, American Civil Liberties Union, American Conservative Union,
Americans for Tax Reform, American Policy Center, Citizens Committee
for the Right to Keep and Bear Arms, Eagle Forum, Free Congress
Foundation, Libertarian Party, Gun Owners of America, Second Amendment
Foundation.
---------------------------------------------------------------------------
While the PATRIOT Act may not deserve all of the ridicule
that is heaped against it, there is little doubt that the
legislation has been repeatedly and seriously misused by the
Justice Department. Consider the following:
It has been used more than 150 times to
secretly search an individual's home, with nearly 90%
of those cases having had nothing to do with terrorism.
It was used against Brandon Mayfield, an
innocent Muslim American, to tap his phones, seize his
property, copy his computer files, spy on his children,
and take his DNA, all without his knowledge.
It has been used to deny, on account of his
political beliefs, the admission to the United States
of a Swiss citizen and prominent Muslim Scholar to
teach at Notre Dame University.
It has been used to unconstitutionally
coerce an Internet Service Provider to divulge
information about e-mail activity and web surfing on
its system, and then to gag that Provider from even
disclosing the abuse to the public.
Because of gag restrictions, we will never
know how many times it has been used to obtain reading
records from library and bookstores, but we do know
that libraries have been solicited by the Department of
Justice--voluntarily or under threat of the PATRIOT
Act--for reader information on more than 200 occasions
since September 11.
It has been used to charge, detain and
prosecute a Muslim student in Idaho for posting
Internet website links to objectionable materials, even
though the same links were available on the U.S.
Government's web site.
Even worse than the PATRIOT Act has been the abuse of
unilateral powers by the Administration. Since September 11,
our government has detained and verbally and physically abused
thousands of immigrants without time limit, for unknown and
unspecified reasons, and targeted tens of thousands of Arab-
Americans for intensive interrogations and immigration
screenings. All this serves to accomplish is to alienate Muslim
and Arab Americans--the key groups to fighting terrorism in our
own county--who see a Justice Department that has
institutionalized racial and ethnic profiling, without the
benefit of a single terrorism conviction.
Nor is it helpful when our government condones the torture
of prisoners at home and abroad, authorizes the monitoring of
mosques and religious sites without any indication of criminal
activity, and detains scores of individuals as material
witnesses because it does not have evidence to indict them.
This makes our citizens less safe not more safe, and undermines
our role as a beacon of democracy and freedom.
While the Majority asserts it is not the duty of this
Committee to respond to these abuses, we believe that ignoring
these and other cases of abuse by our own government
constitutes an abdication of our responsibility as legislators,
and should be addressed by this legislation.
The following is a brief background and description of the
PATRIOT Act and the proposed reauthorization legislation,
followed by a listing of our various concerns with the
legislation.
TABLE OF CONTENTS
I. Background and Description of Legislation.........................
II. We Have Never Been Given the Necessary Facts to Properly Evaluate
the PATRIOT Act...................................................
III. There are Numerous Provisions in Both the Expiring and Other Parts
of the PATRIOT Act that are Largely Unrelated to Terrorism and
Unnecessarily Intrude on Privacy Rights and Other Civil Liberties.
A. Specific Concerns with Expiring Provisions
1. Sec. 206--Roving Surveillance Authority under
the Foreign Intelligence Surveillance Act
2. Sec. 209--Seizure of Voicemail Messages Pursuant
to Warrants
3. Sec. 212--Emergency Disclosures of
Communications Held by Phone Companies and
Internet Service Providers
4. Sec. 214--Pen Register and Trap and Trace
Authority Under FISA
5. Sec. 215--Access to Records and Other Items
under the Foreign Intelligence Surveillance Act
(Library Provision)
6. Sec. 218--Foreign Intelligence Information
7. Sec. 220--Nationwide Service of Search Warrants
for Electronic Evidence
8. ``Lone Wolves'' as Agents of a Foreign Power
B. Specific Concerns with Other Provisions of the
Patriot Act
1. Sec. 213--Authority for Delaying Notice of the
Execution of a Warrant (Sneak and Peek Provision)
2. Sec. 216--Extension of Trap and Trace/Pen Orders
3. Sec. 411--Revocation of Visas
4. Sec. 412--Detention of Immigrants
5. Sec. 505--Miscellaneous National Security
Authorities ``National Security Letters''
6. Sec. 802--Definition of Domestic Terrorism
7. Sec. 805--Material Support for Terrorism
C. General Concerns with Patriot Act Reauthorization
1. Lack of a General Sunset
2. Lack of General Oversight
IV. The Legislation Does Nothing to Address the Many Unilateral Abuses
of The Administration in the War Against Terror...................
A. Material Witness Statute
B. Torture
C. Rendition
D. Enemy Combatants
E. Selective Enforcement of Immigration Provision/
Racial Profiling
F. Excessive Collection of Personal Data
G. Unauthorized Detention of Aliens
H. Closed Immigration Trials
I. Attorney General's Guidelines on Domestic
Surveillance
J. Mis-Classification of Terrorism Investigations
K. Safe Havens for Terrorist Assets
V. The Legislation Does Not Provide Law Enforcement with the
Resources and Tools It Needs to Meaningfully Combat Terrorism.....
A. Preventing Terrorists from Buying Guns
B. Preventing the Sale and Manufacture of .50-caliber
Guns
C. Regulating the Sale of Smokeless and Black Powder
D. Increasing Grants to First Responders
E. Securing our Nation's Ports
F. Eliminating Trade with Terrorist Countries
G. Penalizing those who Leak Classified Information
H. Improving the Terrorist Watch List
VI. Description of Amendments Offered by Democratic Members...........
VII. Conclusion........................................................
Appendix A: Section-by-Section Summary of the USA PATRIOT Act of
2001, H.R. 3162................................................
Appendix B: Summary of 16 Expiring Provisions....................
I. Background and Description of Legislation
The PATRIOT Act was passed into law on October 26, 2001. A
major concern with this legislation is the process by which it
was enacted into law. Within days of the September 11 attacks,
then-Attorney General John Ashcroft publicly announced that the
Justice Department was drafting a new bill that Congress should
pass within one week because the new powers were needed to
fight terrorism. An initial draft of the legislation was leaked
to the media soon after; it is believed that Republican Members
and staff of the Committee were provided actual copies of the
bill. A few days after the draft was leaked, the Department
sent a new, official draft to Congress that consisted of its
wish list of new law enforcement, immigration, and intelligence
authorities. The hearing was so rushed that then-Attorney
General Ashcroft would not even submit himself to a full round
of questions by the members.
The U.S. House Judiciary Committee worked out a bipartisan
compromise with the Administration. The Committee passed the
compromise legislation in the form of H.R. 2975 on an
unprecedented 36-0 vote.\3\ While H.R. 2975 was being prepared
for floor consideration, however, the Administration reneged on
the deal and Chairman Sensenbrenner introduced a new and more
aggressive terrorism bill, H.R. 3108, on the morning of October
12, 2001. That same day, the Rules Committee issued the rule
for H.R. 2975 and provided that H.R. 3108 would be the adopted
substitute amendment to H.R. 2975. The very same day, the House
passed the new legislation by a vote of 337-79 under a closed
rule.
---------------------------------------------------------------------------
\3\ H.R. Rep. No. 236, 107th Cong., 2d Sess. (2001).
---------------------------------------------------------------------------
While the House was moving forward on new legislation, the
Attorney General turned his attention to the Senate, which had
yet to pass a new terrorism bill. The Attorney General publicly
indicated that Senate Democrats questioning the scope of the
Department's new bill would be responsible for future terrorist
attacks if a new terrorism law was not passed in time.\4\
---------------------------------------------------------------------------
\4\ See David G. Savage & Eric Lichtblau, Ashcorft Deals with
Daunting Responsibilities, L.A. Times, Oct. 28, 2001, at A10 (``When
the Attorney General's imposed deadline [for passage of new terrorism
legislation] passed, Ashcroft suggested that if a second terrorist
attack occurred, the recalcitrant lawmakers would deserve the
blame.'').
---------------------------------------------------------------------------
Compromise discussions proceeded and eventually broke down.
Based in part on these discussions, Chairman Sensenbrenner
introduced the new legislation as H.R. 3162 on October 23,
2001. H.R. 3162 was brought straight to the floor under
suspension of the rules and passed the House the next day by a
vote of 357-66. The Senate passed the bill on October 25, 2001,
by a vote of 98-1.\5\
---------------------------------------------------------------------------
\5\ Senator Russ Feingold (D-WI) voted ``No'' and Senator Mary
Landrieu (D-LA) did not vote.
---------------------------------------------------------------------------
Although it was originally hoped that the legislation would
simply give the Justice Department a set of specific tools to
help it fight terrorism, the legislation ended up being a broad
expansion of law enforcement powers that the Department had
been seeking for years, but had been unable to convince
Congress to enact.
As enacted into law, the PATRIOT Act included more than 160
separate sections (Appendix A provides a section by section
description of those provisions). In addition, due in part to
the concern by many Members with the rushed nature and broad
scope of the PATRIOT Act, it was determined that 16 of the
sections authorizing new surveillance powers should sunset on
December 31, 2005 (Appendix B contains a more detailed section
by section description of those 16 expiring provisions).
H.R. 3199 would make permanent all of the sunset provisions
of the PATRIOT Act, save Section 206, concerning John Doe
Roving Wiretaps, and Section 215, concerning foreign
intelligence orders for any tangible thing, which are renewed
for 10 years each. It also makes permanent the material support
and lone wolf authorities created in the intelligence reform
bill last fall.\6\
---------------------------------------------------------------------------
\6\ Intelligence Reform and Terrorism Prevention Act of 2004, Pub.
L. No. 108-458, Sections 6603 and 6001, respectively.
---------------------------------------------------------------------------
The bill makes several changes to current law. First, H.R.
3199 allows a Section 215 recipient to challenge his order in
writing before a three-judge panel of the Foreign Intelligence
Surveillance Court (FISC) in Washington, DC, and assert that
FISA, as written was wrongly applied to his order. Arguably, it
also provides that a person may discuss his 215 order with his
attorney.
Second, H.R. 3199 creates a ``return'' on Section 206 John
Doe Roving Wiretap orders. It simply provides that after a
roving wiretap is issued, the Justice Department return to the
FISA court and certify what facilities were ultimately tapped
within 10 days.
Third, the legislation amends Section 203(b) of the PATRIOT
Act. Section 203(b) allows federal agencies to share
information it gathers from electronic, oral and wire
intercepts with other departments and agencies. This bill would
require the government to notify the court that approved the
original surveillance of the sharing.
Fourth, H.R. 3199 alters Section 207 of the PATRIOT Act
pertaining to the length of FISA orders. It limits the new
extended durations to non-U.S. persons, and extended pen
register and trap and trace orders to one year.
Fifth, during the markup, a Lungren amendment was accepted
that created an annual reporting requirement on Section 212,
which immunizes private companies for their voluntary
disclosures of electronic information to law enforcement in
emergency situations.
Sixth, during markup, a Schiff amendment was accepted which
would add to the list of activities which, if done willfully,
will result in violating the statute which prohibits the
planning of terrorist attacks on mass transportation (18 USC
1993(a)(3)).
Seventh, during markup, a Lofgren amendment was accepted
which amends Section 1001 of the PATRIOT Act to require the
Inspector General of the Department of Justice to also report
on the detentions of persons by the United States, including
information about the length of detention, the offense, and the
conditions and frequency of their access to counsel.
Eighth, during markup, a Schiff amendment was accepted
which (a) adds to the list of predicate offenses which are
considered ``federal crimes of terrorism''; (b) allows for the
forfeiture of property involved in the trafficking of weapons
of mass destruction; and (c) adds numerous crimes related to
terrorism to the list of offenses for which oral and wire
communications may be intercepted under 18 U.S.C. 2516.
Finally, during the markup, Mr. Nadler and Mr. Flake
offered a bipartisan amendment to address the notification
delay period relating to the Section 213 ``sneak and peek''
provision. Under their amendment, the initial period of delayed
notification of secret searches may not be for more than 180
days, and extensions may be given for not more than 90 days at
a time.
It is important to note that the 9/11 Commission
recommended that to retain any new authorities, ``The burden of
proof for retaining a particular government power should be on
the executive to explain (a) that the power materially enhances
security and (b) that there is adequate supervision of the
executive's use of those powers to ensure protection of civil
liberties.'' \7\ We have never been given the facts necessary
to properly evaluate its operation; however, based upon the
information we have been able to glean our review indicates
that this burden has not been met. For these and the reasons
set forth herein, we oppose H.R. 3199
---------------------------------------------------------------------------
\7\ The 9/11 Commission Report, National Commission on Terrorist
Attacks Upon the United States, at 395.
---------------------------------------------------------------------------
II. We Have Never Been Given the Necessary Facts To Properly Evaluate
the PATRIOT Act
Neither the original USA PATRIOT Act nor this
reauthorization legislation were subject to proper oversight.
Since the enactment of the PATRIOT Act, the Department has
failed to account for its use. In addition, the pending
legislation was deprived of any deliberative consideration
prior to the full Committee markup.
First, the Department has thwarted efforts on the part of
Democratic Members to learn how the PATRIOT Act has been
enforced. While the Department has responded to Committee
inquiries pertaining to the Act, in many instances it states
that it does not keep track of how certain authorities are used
or qualifies the answers it does give. For instance, in its
most recent submission to the Committee, the Department states
it does not know how many times Foreign Intelligence
Surveillance Act authorities have been used to investigate
terrorism crimes versus other offenses.\8\
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\8\ Letter from the Honorable Alberto Gonzales, Attorney General of
the United States, to the Honorable F. James Sensenbrenner, Jr.,
Chairman, U.S. House Comm. on the Judiciary 3-4 (July 12, 2003).
---------------------------------------------------------------------------
On April 1, 2003, the Committee sent the Department an
exhaustive series of questions on the Act. In response to a
question about how many mosques have been contacted for
membership lists, the Department merely states that it has
conducted demographic surveys of mosques; it simply ignores the
question.\9\ It further states it does not keep racial or
ethnic characteristic information on material witness detainees
and, as such, is unable to answer a question about that
matter.\10\ When it chooses to answer a question, the
Department often includes a qualifier, making the answer
meaningless. For example, when replying to a question about
material witness detainees since September 11, 2001, having
access to legal counsel, the Department says that ``every
single person detained as a material witness as part of the
September 11 investigation has been represented by counsel.''
\11\ The answer left open the possibility that a material
witness as part of a non-September 11 terrorism investigation
was denied access to counsel.
---------------------------------------------------------------------------
\9\ Letter from the Honorable Jamie E. Brown, Acting Ass't Attorney
General, U.S. Dep't of Justice, to the Honorable F. James
Sensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary 56 (May
13, 2003).
\10\ Id. at 50.
\11\ Id. at 48.
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In addition, the Department prohibits public review of its
activities by sending some information about the PATRIOT Act
under classified cover. Interestingly, in at least two
instances, the Department has declassified relevant information
only when it was politically expedient. In the summer of 2003,
there was significant criticism of section 215 of the Act from
the media, civil liberties groups, and libraries and bookstores
based on the belief that the provision gave unconstitutionally
broad power to seize documents and things about anybody,
including patrons' library and bookstore records in violation
of the First Amendment.\12\ Attempting to quell such rising
criticism, on September 18, 2003, the Attorney General
declassified a memorandum he had written to FBI Director Robert
Mueller showing that section 215 had never been used as of that
date.\13\ In addition, then-Attorney General John Ashcroft
declassified a memo written by 9/11 Commissioner Jamie Gorelick
concerning the ``wall'' between criminal and intelligence
investigations as a way to turn attention away from his failure
to appropriately focus on counterterrorism.\14\
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\12\ Warren Richey & Linda Feldmann, Has Post-9/11 Dragnet Gone too
Far?, Christian Science Monitor, Sept, 12, 2003, at 1; Howard Troxler,
New Powers? Not Unless the Feds Get Old Ones Right, St. Petersburg
Times, Sept. 10, 2003, at 1B; Jack Torry, Opinions Clash on Terrorism-
Fighting Patriot Act, Columbus Dispatch, Sept. 7, 2003, at 1C; Peter
Schworm, Librarians Fight Search Law, Boston Globe, Aug. 21, 2003 at 1;
Nat Hentoff, Ashcroft Moves to Encroach further on our Liberties,
Chicago Sun-Times, Aug. 24, 2003, at 30 (op-ed); James Bovard, America
Fights for Freedom to Read, Balt. Sun, Aug. 18, 2003, at 15A; Congress
Should Reform Dangerous Patriot Act, Det. News, Aug. 1, 2003 at 10A
(editorial); Ellen Goodman, It's Time for Congress to Take Away
Ashcroft's Fishing License, Balt. Sun, at July 24, 2003, at 17A
(editorial); Lillian Thomas, Rights Groups Rally Opposition to National
Anti-Terrorism Law, Pittsburgh Post-Gazette, July 17, 2003, at B5; Don
Behm, Bookstores Balk at Record-Seizure Law, Milwaukee Journal-
Sentinel, June 23, 2003, at 2A; Wayne Woodlief, Ashcroft's Act Borders
on Unpatriotic, Boston Herald, June 8, 2003, at 25 (op-ed).
\13\ Memorandum from the Honorable John D. Ashcroft, Attorney
General of the United States, to the Honorable Robert S. Mueller,
Director, FBI (Sept. 18, 2003).
\14\ Jason Zengerle, ``Critiquing Ashcroft's 9/11 Show,'' The New
Republic, April 15, 2004.
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The Department's lack of accountability is even more
troubling considering that it was derelict in its duties to
Congress just prior to the markup. On May 19, 2005, over one
month after the Committee's April 6, 2005 hearing with the
Attorney General, Chairman Sensenbrenner transmitted to the
Department a series of questions about the Act for himself,\15\
Ranking Member John Conyers, Rep. Zoe Lofgren, and Rep. Martin
Meehan (D-MA).\16\ While the Department answered the Chairman's
questions on June 10, 2005,\17\ the answers to the questions
submitted by the three Democratic Members were answered only on
the morning of the full Committee markup over one month later,
and most of the answers were incomplete and unresponsiive.\18\
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\15\ Letter from the Honorable F. James Sensenbrenner, Jr.,
Chairman, U.S. House Comm. on the Judiciary, to the Honorable Alberto
Gonzales, Attorney General of the United States (May 19, 2005)
(transmitting questions on behalf of himself).
\16\ Letter from the Honorable F. James Sensenbrenner, Jr.,
Chairman, U.S. House Comm. on the Judiciary, to the Honorable Alberto
Gonzales, Attorney General of the United States (May 19, 2005)
(transmitting questions on behalf of Democratic Members).
\17\ Letter from the Honorable Alberto Gonzales, Attorney General
of the United States, to the Honorable F. James Sensenbrenner, Jr.,
Chairman, U.S. House Comm. on the Judiciary (June 10, 2005) (sent under
classified cover).
\18\ Letter from the Honorable Alberto Gonzales, Attorney General
of the United States, to the Honorable F. James Sensenbrenner, Jr.,
Chairman, U.S. House Comm. on the Judiciary (July 12, 2005).
---------------------------------------------------------------------------
Similarly, Rep. Zoe Lofgren attempted to exercise her
oversight authority and requested to see applications for
search and seizure orders obtained under Section 214 (pen
register and trap-and-trace orders) and Section 215 (business
records) of the USA PATRIOT Act. A letter was sent on behalf of
Ms. Lofgren and the other Members of the Committee who wished
to review these order applications on July 7, 2005.\19\ The
letter asked that they be allowed to review these orders on
either Monday or Tuesday, July 11 or July 12, as the Committee
was set to markup H.R. 3199 on Wednesday. On Monday, July 11,
two days before the Committee was set to meet, DOJ responded
that usually only redacted copies are provided to the
Intelligence Committees; DOJ was asked to determine if our
members could also review these orders. Finally, at 5:50 on
Tuesday, July 12, 2005, approximately 16 hours before the
Committee markup was to begin, the DOJ responded that Committee
members could review a sample of FISA applications at the
Senate Select Committee on Intelligence, and could not review
FISA applications at main Justice.
---------------------------------------------------------------------------
\19\ Letter from Perry Apelbaum, Minority Chief Counsel, House
Judiciary Committee, to Assistant Attorney General William E.
Moschella, July 7, 2005. Letter on file with Committee.
---------------------------------------------------------------------------
This entire process illuminates the steps DOJ has taken to
prevent the Democratic members from performing effective
oversight. Second, Ms. Lofgren and the other Committee members
have the authority and necessary clearance to review these
orders and there was no clear reason why the Judiciary
Committee members should be blocked from reviewing orders that
the Intelligence Committees can review. Finally, this
interchange undermines one of the main reasons the Majority
uses to justify making the PATRIOT Act permanent the Majority
argues that the Members can exercise oversight if they so
choose, and that they have not chosen to exert this oversight.
Here, the Members attempted to review the authority granted to
law enforcement by the PATRIOT Act under FISA and they were
deliberately delayed and thwarted in their attempt to perform
their constitutional duty of oversight of the executive branch.
Thus, it is not that the Members do not wish to perform
oversight of the use of these authorities; rather, it is that
the Administration has conducted a deliberate attempt to deny
and block certain Members ability to do so.
The concerted effort to thwart any meaningful oversight and
review of the Patriot Act is also evident by the manner in
which the Majority chose to respond to the Minority's request
for additional day of oversight hearings on the legislation.
During the course of the Committee's oversight hearing with
Deputy Attorney General Comey, and pursuant to House Rule XI,
clause 2(j)(1), the Minority requested an additional day of
oversight hearings on the reauthorization of the Patriot Act.
The purpose of the additional day of hearings was to provide
Members with a last chance opportunity to explore important
issues within the scope of the Patriot Act which up until that
point had not been adequately covered.
Unfortunately in responding of the Minority's request, the
Majority decided to engage in a series of actions which
frustrated the Minority's party efforts to conduct such a
hearing. Namely, the Majority chose to schedule the requested
day of hearings with less than forty-eight hours notice;
required the Minority to provide the Majority with a list of
witnesses and witness testimony in less than twenty-four hours;
decided to schedule the hearing at 8:30 am on a Friday, a date
in which there where no votes on the House floor; and chose to
unilaterally adjourn the hearing without first obtaining or
seeking either a unanimous consent request or a vote of the
Committee members present. As pointed out in the resolution
offered by Mr. Nadler raising a question of privilege regarding
these actions, many of these aforementioned deeds were in clear
violation of numerous House rules and certainly contrary to the
Committee's usual custom and practices.
Finally, Members of the Committee were deprived of any
meaningful review of H.R. 3199 after its introduction. The
Majority distributed the legislation only on the late afternoon
of Friday, July 8, 2005, just five days before it was scheduled
to be considered by the Committee. In addition, this
legislation was not subject to any hearing, either at the full
Committee or subcommittee level, or to a subcommittee markup.
Hearings and subcommittee markups are preliminary stages of
review that are customary in the House for any legislation;
they permit the Members and other interested parties to
consider and debate specific legislation prior to final
consideration before either the full Committee or the full
House.\20\ The Majority, unfortunately, bypassed these
important steps and immediately scheduled H.R. 3199 for a full
Committee vote.
---------------------------------------------------------------------------
\20\ We would note that even in the immediate aftermath of the
September 11 attacks, a preliminary draft of the PATRIOT Act was
subject to a legislative hearing in the Committee. Administration's
Draft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the
Judiciary, 107th Cong., 1st Sess. (Sept. 24, 2001).
---------------------------------------------------------------------------
III. There are Numerous Provisions in Both the Expiring and Other Parts
of the PATRIOT Act That Are Largely Unrelated to Terrorism and
Unnecessarily Intrude on Privacy Rights and Other Civil Liberties
There are numerous provisions in the PATRIOT Act, that have
raised concerns. The following is a description of some of the
concerns and issues.
A. SPECIFIC CONCERNS WITH EXPIRING PROVISIONS
1. Sec. 206--Roving surveillance authority under the Foreign
Intelligence Surveillance Act
This section allows the FBI to use roving wiretaps under
FISA. This means that the FBI can obtain a single court order
to tap any phone they believe a foreign agent would use,
instead of getting separate court orders for each phone.
Additionally, the government does not need to name the target,
thus allowing so-called ``John Doe'' wiretaps. The impact of
allowing ``John Doe'' roving wiretaps is that the government
can legally tap almost any phone of almost any person without
having to show that the person is in any way connected to
espionage or terrorism, or even suspected of criminal
wrongdoing. Thus, the Fourth Amendment rights of ordinary
citizens against such search and seizures can be completely
circumvented.
Few disagree that roving wiretaps are important. Indeed,
they have been useful in criminal investigations since 1986.
However, FISA roving wiretaps go far beyond criminal wiretaps.
First, FISA allows for blanket tapping, such as tapping all the
payphones in the target's neighborhood or all of his relatives,
without showing that the target will actually use the
device.\21\ Second, agents seeking a roving wiretap need not
even identify a specific suspect and may instead get ``John
Doe'' warrants.\22\ These add up to roving ``John Doe''
warrants that require so little specificity that they can be
easily abused. The number of times this authority has been used
and in what manner was classified \23\ until April 6 2005, when
the Attorney General admitted to using it 49 times since the
PATRIOT Act passed.
---------------------------------------------------------------------------
\21\ John Podesta, ``USA PATRIOT Act: The Good, the Bad and the
Sunset,'' Human Rights Magazine, Section of Individual Rights and
Responsibilities, American Bar Association, Winter 2002.
\22\ ``Let the Sun Set on PATRIOT,'' Electronic Frontier
Foundation, available at www.eff.org.
\23\ Oversight answers, submitted by Daniel J. Bryant, Assistant
Attorney General, July 26, 2002, on file with the House Judiciary
Committee; The PATRIOT Act: Myth vs. Reality, U.S. Department of
Justice, September 2003.
---------------------------------------------------------------------------
The Justice Department argues that this authority is
available in criminal cases. However, a criminal wiretap
application must include specific information about the crime,
the location to be tapped and the identity of the target, if
known.\24\ A judge must also find probable cause that (1) the
target has or will commit a crime, (2) the communications to be
seized are related to that crime, and (3) the phones to be
tapped will be used by the target, as well as that normal
investigative procedures have failed or will fail.
---------------------------------------------------------------------------
\24\ 18 U.S.C.A Sec. 2518(1)(b) (2005).
---------------------------------------------------------------------------
This statute does allow roving wiretaps. However, a roving
wiretap triggers a whole new section that requires that the
application ``identif[y] the person committing the offense and
whose communications are to be intercepted.'' \25\ In other
words, the Justice Department must choose between a John Doe or
a roving wiretap in criminal cases--it cannot have both at the
same time.\26\
---------------------------------------------------------------------------
\25\ 50 U.S.C.A. 2518(11) (2005).
\26\ The Justice Department will claim that it has the authority to
issue similar wiretaps in criminal cases, and cites support from three
circuits. Yet, the cases that found the use of roving wiretaps to be
constitutional did so because of the other requirements in the Title
III statute that make the warrant particular enough to meet Fourth
Amendment muster. These requirements are not in FISA, however. Also, it
appears that those cases were not about ``John Doe'' wiretaps and
therefore not quite as ``similar'' as the Justice Department claims.
---------------------------------------------------------------------------
2. Sec. 209--Seizure of voicemail messages pursuant to warrants
Section 209 of the PATRIOT Act expands the ability of law
enforcement to seize voicemails. Before the Act, voicemail
messages on an answering machine in one's home could be seized
pursuant to a search warrant. Voicemail messages stored with a
service provider, however, required a Title III order. A Title
III order actually offers higher protections than a search
warrant: a Title III warrant requires more information than
just a showing of probable cause and the probable cause section
of a Title III order is more extensive than an affidavit for a
search warrant.\27\
---------------------------------------------------------------------------
\27\ A Title III search warrant or order requires what is known at
``probable cause plus.'' Rather than showing there is probable cause to
believe, for example, that a particular phone line is being used in
connection with criminal activity, a Title III order must prove that
the particular phone line is ``clearly being used'' for illegal
purposes. Furthermore, in order to obtain a Title III warrant, the
officer must show why normal investigative procedures have failed.
---------------------------------------------------------------------------
Some of us are concerned Section 209 may unreasonably
expand the authority of law enforcement to seize the content
contained in voicemail messages by amending the law to treat
stored voicemails like other stored data. Section 209 may
circumvent the Fourth Amendment requirements of notice and
probable cause for voicemails stored by a third party, leading
to a real concern about how private and personal communications
should be treated in connection with criminal investigations.
Section 209 amends the law to treat stored voicemails like
other stored data (such as emails). While Section 209 seemingly
requires a warrant to seize voicemail messages, the law amended
by this provision actually makes a key distinction between
older and newer stored emails, and this distinction now applies
to stored voicemails. Those voicemails that are considered
``old'' do not require a warrant or Title III order to be
seized--which requires probable cause--but rather merely
require a subpoena. Therefore, a possibly reasonable power of
seizing stored voicemails has been expanded unreasonably to
allow their seizure by any prosecutor at any time, thus
vitiating existing privacy rights. And, merely because the
voicemails are stored by a third party, rather than stored on a
home answering machine, they can be seized without notice to
the target. This violates the longstanding constitutional
principal that ``the Fourth Amendment protects people, not
places,'' expressed by the Supreme Court in Katz v. United
States.\28\ As a result, Section 209 allows law enforcement to
seize the content contained in voicemails without any of the
necessary Fourth Amendment protections. Finally, Section 209
applies to not just to terrorism investigations, but to any
criminal investigation.
---------------------------------------------------------------------------
\28\ 389 U.S. 347, 351 (1967).
---------------------------------------------------------------------------
3. Sec. 212: Emergency disclosures of communications held by phone
companies and Internet service providers
This section permits telephone companies and Internet
Service Providers (ISPs) to disclose to the government, without
penalty, customer communications and records if they think
there is a danger of death or serious injury. This section
precludes liability regardless of whether the company
innocently stumbles on the information itself and approaches
the government, or whether law enforcement initiates the
disclosure itself. Because this section directly amended Title
18 of the U.S. Code, it can be used in any run-of-the-mill
criminal investigation and has no ties to terrorism cases. In
fact, all of the examples cited by the Justice Department are
non-terror cases, including a bomb threat against a school,
numerous kidnaping cases, and computer hacking threats.\29\
---------------------------------------------------------------------------
\29\ See Report From the Field: The USA PATRIOT Act at Work, U.S.
Department of Justice, July 2004.
---------------------------------------------------------------------------
Section 225 of the Homeland Security Act (HSA) of 2002 \30\
made permanent the provision that allowed the disclosure of
content. Only the portion of Section 212 that authorized the
disclosure of records is scheduled to sunset at the end of the
year. However, it is important to note that the new content
disclosure rules in the HSA that prematurely reversed the
PATRIOT Act sunset are even more permissive than originally
passed by the PATRIOT Act. By all accounts, the new provision
is far worse as it, ``lower[s] the relevant standard from
`reasonable belief' of a life-threatening emergency to a `good
faith belief,' allow[s] communications providers to use the
emergency exception to disclose data to any government entity,
not just law enforcement, and drop[s] the requirement that the
threat to life or limb be immediate.'' \31\
---------------------------------------------------------------------------
\30\ Pub. L. No. 107-296 (2002).
\31\ Let the Sun Set on PATRIOT, Electronic Frontier Foundation,
available at www.eff.org.
---------------------------------------------------------------------------
There are several concerns with the emergency disclosure
provision, Section 212: First, there is absolutely no judicial
oversight, including after-the-fact review by a court such as
what happens under FISA.\32\ The Justice Department has not
addressed why a similar provision could not be put into the
criminal law. Second, no notice is given to the target, even
after the emergency has been resolved. Third, there is no
consequence for a rogue or careless law enforcement officer who
may overstate a threat in order to elicit communications
without obtaining a subpoena or warrant. Under Fourth Amendment
controlled searches, the government would be prohibited from
using the evidence at trial, yet there appears to be no such
protection for these disclosures. Finally, the Homeland
Security Act of 2002 required each entity to receive one of
these disclosures to report it to the Attorney General within
90 days.\33\ The Attorney General is then to report to
Congress, but never has. Unfortunately, H.R. 3199 makes no
effort to reign these powers in and provide even limited
safeguards to ensure these authorities are not abused.
---------------------------------------------------------------------------
\32\ The Attorney General may authorize emergency orders, but must
then apply for a FISA Court warrant within 72 hours. If it is not
granted, the exclusionary rule prevents the information from being used
in court.
\33\ Pub. L. No. 107-296 Sec. 225(d) (2002).
---------------------------------------------------------------------------
4. Sec. 214--Pen register and trap and trace authority under FISA
This section made it easier for the FBI to get a pen
register or trap-and-trace under FISA.\34\ The FBI needs to
prove the order is needed to obtain foreign intelligence
information not concerning a U.S. person or to protect against
international terrorism or clandestine intelligence activities.
Prior to the PATRIOT Act, the FBI needed to establish that the
telephone line in question had been used or was about to be
used in connection with terrorism or a crime; this requirement
was deleted.
---------------------------------------------------------------------------
\34\ A pen register is used to record the phone numbers that are
dialed from a target phone. A trap-and-trace is used to record the
phone numbers of the incoming calls to a target phone.
---------------------------------------------------------------------------
As the majority and the DOJ points out, search warrants are
not required for pen register and trap and trace activities
under the criminal law.\35\ However, FISA pen register/trap and
trace orders not only are not based on probable cause, but are
not necessarily targeted at an individual based on even a
lesser showing of involvement in any wrongdoing or any
activities that otherwise might legitimately expose him to
clandestine surveillance by the FBI. Before section 214, the
government had to prove that the target was an agent of a
foreign power; now, they need only prove that the information
is related to a terror or intelligence investigation. This
extremely broad qualification of a FISA pen register/trap and
trace order has led many groups to oppose it.\36\
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\35\ Smith v. Maryland, 442 U.S. 735, 744 (1979) (using the phone
involved a third party--the phone company--and therefore destroyed any
expectation of privacy the target had).
\36\ See, for example, Electronic Privacy Information Center ``The
USA PATRIOT Act,'' at www.epic.org/privacy/terrorism/usapatriot/.
---------------------------------------------------------------------------
5. Sec. 215--Access to records and other items under the Foreign
Intelligence Surveillance Act (so-called ``Library'' Provision)
Section 215 of the PATRIOT Act expanded the FBI's ability
to obtain ``any tangible thing'' under the Foreign Intelligence
Surveillance Act. Before the Act, the government could obtain
records only from hotels/motels, storage facilities and car
rental companies, and only if they pertain to ``agents of a
foreign power.'' Now, it can seek ``any tangible thing'' from
any one at all as long as it is relevant to investigation.
Because the statute is so broad, the government could
investigate consumers' reading and Internet habits and private
records (such as credit card information, medical records, and
employment histories). The Government will argue that it
already had access to these sorts of business records in
criminal investigations using grand jury subpoenas. However,
the government's powers here are wholly different because there
is no requirement of relevance to any criminal activity, as
there is with grand jury investigations. A federal court found
that section 215 implicates new constitutional problems: (1) it
applies to any tangible thing, and is no longer limited merely
to business records, and (2) it no longer requires ``specific
and articulable facts giving reason to believe that the person
whom the records pertain is a foreign power or an agent of a
foreign power,'' but only that ``the records concerned are
sought for an authorized investigation.'' \37\ Thus, Section
215 can be used against any person even if the person is NOT
suspected of wrongdoing or of any connection to a foreign
power. Thus, there is virtually no limit to what these orders
can get, and H.R. 3199 did nothing to improve this section.
---------------------------------------------------------------------------
\37\ ACLU v. Dept. of Justice, 321 F.Supp.2d 24 (D.D.C. 2004)
(citing section 215 in its current form, and its original form, Pub. L.
No. 105-272 (1998)).
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We are concerned that these sections can be used to obtain
very private information on purely innocent people. Whether it
is library records, medical information or gun purchase
records, the government should have access to them only when it
can at clearly state why it needs them and why the person they
pertain to is a terrorist or closely related to one. For
example, the American Library Association has confirmed that
the federal government has gone into a library and asked for a
list of everyone who checked out a book on Osama bin Laden. In
the wake of the horrific attack of September 11, it is obvious
that many innocent people may go seeking information on why it
happened. This search clearly gathered information on innocent
people, who had the right to privacy in their reading habits.
As a matter of fact, since 9/11, the American Library
Association found that libraries have received over 200 formal
and informal requests for materials, including 49 requests from
federal officers, although it cannot be confirmed what
authority (if any) was cited by the federal officers for
obtaining this information.
Importantly, recipients of 215 orders are prohibited from
disclosing that they received such an order to anyone but their
attorneys. As a result, even though Section 215 allows for
library reading habits to be surveilled and other private
information to be seized, we have absolutely no way of knowing
how often this authority has been used. And, recipients of 215
orders have no way of denouncing or challenging government
overreach or abuse.
The only amendment on this issue that was accepted was one
offered by Mr. Flake, though most of us feel that it is clear
that this amendment does not solve the problem. Mr. Flake's
amendment would allow 215 order recipients to consult their
attorneys ``with respect to'' the order, rather than ``in
response to.'' Mr. Flake argues that this change would
therefore allow a Section 215 order to consult an attorney
about challenging the order. However, this small cosmetic
change does not clearly give Section 215 recipients the right
to challenge 215 orders. The right to consult an attorney does
not directly lead to an ability to challenge the order in
court, and this amendment does nothing to relieve the burden of
the review mechanism created by H.R. 3199 or ensure that
recipients will have enough information to successfully
challenge problematic 215 orders.
In order to be meaningful, reform of section 215 must
directly address its current infirmities. First, the standard
for issuing a section 215 order must be reformed to require
some individual suspicion that the records related to a spy,
terrorist or other foreign agent, which may include the records
of other (innocent) third parties where those records are
clearly relevant to the activities of the subject under
investigation. Second, a right to challenge must be a
meaningful one. A meaningful right to challenge cannot be
limited to the FISA court itself, which sits only in
Washington, DC, operates in secret according to highly
classified procedures, and ordinarily hears only from the
government. The challenge must be based not only on whether the
order is legal, but should allow for challenges on the basis
that an order is unreasonable, oppressive, seeks privileged
information. Finally, the hearing on the challenge should not
be limited to a one-sided presentation of government attorneys
based on secret evidence.
While a court has not ruled on the ultimate constitutional
merits on section 215, it may well be found to violate the
First Amendment because it (a) places a prior restraint on free
speech and (b) monitors the free speech activities of its
targets, and to violate the Fourth Amendment because it fails
to provide notice to the target.\38\ Minority members offered
many amendments that would have protected the privacy of
Americans; all were rejected on party line votes.\39\
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\38\ ACLU, Surveillance Under the USA PATRIOT Act, available at
www.aclu.org/Safeandfree.
\39\ The Amendments were as follows:
Mr. Nadler offered several amendments. He offered an amendment to
limit 215 orders to ``agents of a foreign power.'' Mr. Nadler also
offered an amendment on the gag order contained in Section 215. His
amendment would still allow gag orders, but the government would first
need to show that the gag order is necessary, rather than having gag
orders be automatically applied to any Section 215 recipient. For
example, a gag order could be obtained if the government showed
disclosure would endanger someone's life. Additionally, gag orders, if
obtained, would have time limit of 180 days, with extensions available
for up to 180 days. Mr. Nadler offered another amendment to the
nondisclosure provision in Section 505. His amendment would allow
disclosure to one's attorney or to anyone to whom disclosure is
necessary to comply, thus making Section 505 have the same
nondisclosure provision as Section 215. In addition, the amendment
limited the nondisclosure period to 90 days. The government may request
extensions of up to 180 days if they can show a clear harm would result
from disclosure.
Mr. Schiff offered an amendment to require 215 orders to be made by
the Director of the Federal Bureau of Investigation;
Ms. Jackson Lee offered an amendment to exempt medical records from
the 215 authority.
Mr. Watt and Ms. Waters offered a compromise amendment which would
provide for automatic gag orders for Section 215 order recipients but
would limit the nondisclosure period to 180 days. The amendment also
allowed the government to btain an extension for up to 180 days if it
could show the disclosure would result in a clear harm such as
endangering someone's life.
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On June 15 of this year, however, the House of
Representatives voted to prevent funds from being spent on any
215 orders that would produce library circulation records,
patron lists, book sales records or book costumer records.\40\
The Amendment to the SCJSS 2006 Appropriations bill passed 238-
187.
---------------------------------------------------------------------------
\40\ Amendment 280 to H.R. 2862, the Science, the Department of
State, Justice, and Commerce Appropriates Act for Fiscal Year 2006.
---------------------------------------------------------------------------
6. Sec. 218--Foreign intelligence information
This section says the FBI needs to aver that a
``significant'' purpose of a FISA order request is to gather
foreign intelligence; before the Act, the FBI needed to show
that obtaining foreign intelligence was the ``primary purpose''
of the order.
The Department has confirmed that ``there was no legal
impediment to introducing in a criminal prosecution evidence
obtained through FISA before the USA PATRIOT Act.'' \41\
Instead, the Department says these barriers resulted from
``certain court decisions and administrative practice by the
Department.'' \42\ Impediments to sharing information between
intelligence and law enforcement investigators were, therefore,
almost entirely the result of administrative barriers, rather
than statutory requirements that were eased by the USA PATRIOT
Act. This was confirmed by the FISC Court of Review.\43\
Because the Court held that there was no legal ``wall'' to
begin with, there is no reason to believe that letting this
section sunset would reimpose the ``wall.''
---------------------------------------------------------------------------
\41\ May 13, 2003 Letter at 12 (emphasis in original).
\42\ Id. at 13.
\43\ In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev.
2002).
---------------------------------------------------------------------------
Again, it is important to note that PATRIOT Act has already
created permanent authorization for information sharing between
the criminal and intelligence agencies: Section 905 requires
the Attorney General to provide terror-related information that
is uncovered in the process of a criminal investigation to the
Director of National Intelligence, and section 504 allows FISA
information to be given to the Criminal Division.\44\
---------------------------------------------------------------------------
\44\ Kate Martin, ``Why Section 203 and 905 Should be Modified,''
American Bar Association's Patriot Debates, available at http://
www.patriotdebates.com/203-2#opening.
---------------------------------------------------------------------------
The Justice Department has provided a small number of
anecdotal stories of how FISA obtained evidence helped
prosecute standard crimes, although it refuses to give a full
accounting about how this provision has gone above and beyond
sharing already allowed under the law.\45\ The Department also
has admitted to sending over 4,500 FISA files to the Criminal
Division, although it could not account for how many of those
resulted in prosecutions.\46\
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\45\ Oversight answers, submitted by Jamie E. Brown, Acting
Assistant Attorney General, May 13, 2003, on file with the House
Judiciary Committee; Oversight answers, submitted by Daniel J. Bryant,
Assistant Attorney General, July 26, 2002, on file with the House
Judiciary Committee.
\46\ Oversight answers, submitted by Jamie E. Brown, Acting
Assistant Attorney General, May 13, 2003, on file with the House
Judiciary Committee.
---------------------------------------------------------------------------
The effect of letting the status quo continue is that
evidence obtained from a FISA warrant under FISA's statutory
``probable cause'' standard can be given to non-terror criminal
prosecutors who are governed by the higher standard of 4th
Amendment probable cause. In fact, the lower standard FISA
warrant can be sought for criminal prosecution purposes, as
long as terrorism or national intelligence is some small (but
``significant'') part of the reason given. The long-standing
policy of not letting criminal prosecutors direct intelligence
investigations has been vitiated.
We are aware of at least one significant abuse of this new
authority by the Department. The FBI used Section 218 to
secretly break into Brandon Mayfield's home, download the
contents of four computer drives, take DNA evidence and take
355 digital photographs. Though the FBI admits Mr. Mayfield is
innocent, they still will not divulge the secret court order to
him, or allow him to defend himself in court. Given that this
search took place after the terrorist attack for which Mr.
Mayfield was wrongly suspected, and not before, it is unclear
how the search was for any reason but to find evidence
incriminating Mr. Mayfield.
Strikingly, under Section 218, a notice is not provided to
the target unless the evidence collected is used at trial.
Thus, a target of a search may never learn that their house or
business was searched and that evidence was seized.
Furthermore, as seen in the Brandon Mayfield case, the
government refuses to even let Mr. Mayfield see the order for
the search that took place under Section 218, thus preventing
him from being able to defend himself.\47\
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\47\ Ms. Jackson Lee introduced an amendment to provide notice of a
search or surveillance under Section 218 if the target is found to be a
United States person who is not an agent of a foreign power. The
amendment would mandate that notification be given no later than 180
days after it is determined that a U.S. person is not an agent of a
foreign power, and this amendment covered all forms of surveillance and
searches allowed under Section 218. However, this reasonable amendment
was rejected by the Majority.
---------------------------------------------------------------------------
7. Sec. 220--Nationwide service of search warrants for electronic
evidence
Section 220 allows a single court to issue a search warrant
for electronic evidence that is valid nationally. According to
the Department's May 13, 2003 letter, it has used this
authority to track a fugitive and to track a hacker who stole
trade secrets from a company and then extorted money from
it.\48\ Importantly, Section 220 deals only with ordinary
criminal investigations. It is doubtful Congress meant to
expand this power to even ordinary criminal investigations in
its rush to pass the USA PATRIOT Act.
---------------------------------------------------------------------------
\48\ Id. at 24.
---------------------------------------------------------------------------
The biggest threat is that Section 220 allows law
enforcement to ``forum shop'' by having a more lenient judge in
a different jurisdiction that may have little or no nexus to
the actual target issue a warrant. Thus, law enforcement
officers can game the system to ensure they obtain the warrants
they want. Furthermore, nationwide search warrants decrease the
possibility of judicial review--a person served with a search
warrant in New Jersey, but issued by a judge in California, is
highly unlikely to travel to California to challenge even a
facially unconstitutional warrant.\49\
---------------------------------------------------------------------------
\49\ Mr. Watt introduced an amendment to fix precisely this
problem. Mr. Watt's amendment would allow the target of a search
warrant to challenge it in the district where it is served, or, if the
warrant is executed against a corporation, in any district where the
corporation is incorporated. This reasonable amendment would ensure
that people are able to assert their constitutional rights against
unreasonable searches and seizures. However, the majority rejected this
commonsense approach.
---------------------------------------------------------------------------
8. ``Lone Wolves'' as Agents of a Foreign Power
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 created the so-called ``lone wolf''
provision of FISA redefining the ``agent of a foreign power''
to include those who ``engage in international terrorism or
activities in preparation therefore.'' In other words, agents
of a foreign power no longer need to have any connection to a
foreign power and instead can be persons working alone. This is
limited to non-U.S. persons.\50\ The effect of this change is
to allow individuals to be targeted and surveilled under the
FISA powers usually reserved for those who are clearly agents
of a foreign power. Importantly, the powers used under FISA
significantly relax many of the protections provided those
targeted in criminal investigations.
---------------------------------------------------------------------------
\50\ Although a leaked ``PATRIOT II'' bill authored by the Justice
Department would have expanded the lone wolf provision to cover U.S.
persons as well.
---------------------------------------------------------------------------
The purpose of FISA always has been espionage and terrorism
surveillance against foreign governments, foreign groups, or
individuals associated with such governments or groups. Section
6001 expanded FISA to include any single person who engages in
a violent act that (1) transcends national boundaries and (2)
is intended to coerce the government or a civilian population.
The ``foreign agent'' probably cause that the ``lone wolf''
provision repealed was critical to the constitutionality of
FISA surveillance and this change threatened to render the FISA
statute unconstitutional. Importantly, when this provision
passed the House Judiciary Committee in the markup of H.R. 10,
it contained a rebuttable presumption that a FISA judge could
invoke to approve surveillance based on a presumption that the
suspect was acting for a foreign power, even though there was
no evidence the target had ties to foreign governments or an
international terrorist group. This was an important
modification to the ``lone wolf'' power that would have given
more discretion to the FISA court to use this power when the
circumstances suggested the suspect was acting for a foreign
power, but would not have allowed surveillance when it is clear
there was no foreign power at all. That provision was removed
before the bill went to the floor and passed as part of the
intelligence bill.
B. SPECIFIC CONCERNS WITH OTHER PROVISIONS OF PATRIOT ACT
Concerns have been expressed with several other provisions
of the Act. Though a number of germane amendments were offered
by Democratic Members at the markup, all were rejected by the
Majority.
1. Sec. 213--Authority for delaying notice of the execution of a
warrant (so-called ``sneak and peek'' provision)
This section permits Federal agents to search a home and
indefinitely delay notification of that search to a suspect if
a court finds ``reasonable cause'' that immediate notification
could have an adverse result (also known as ``sneak and peek''
searches).\51\ With court permission, the government also can
use this authority to seize property and delay notification to
the suspect of that seizure.
---------------------------------------------------------------------------
\51\ USA PATRIOT Act Sec. 213.
---------------------------------------------------------------------------
The majority argues that these search warrants were
available in many circuits before the PATRIOT Act. But as CRS
explains, section 213 breaks new ground by answering questions
the courts had not yet confronted: ``The Act extends the
delayed notification procedure of chapter 121, which operates
in an area to which the Fourth Amendment is inapplicable, to
cases to which the Fourth Amendment applies, 18 U.S.C.'' \52\
Before, delayed notice was reserved for (1) exigent
circumstances and (2) when notification of a search/seizure of
stored communications would interfere with an investigation,
and many courts had yet to rule on the government's contention
that delayed notice searches were appropriate in far broader
circumstances. This latter exception was based on the courts'
repeated finding that stored communications did not have Fourth
Amendment protections, and therefore notice was not required.
The problem with section 213 is that it extends this
``investigative interference'' exception to all criminal
activity, where the Fourth Amendment is clearly implicated and
where many court had not yet ruled on the appropriate
standards.
---------------------------------------------------------------------------
\52\ Charles Doyle, The PATRIOT ACT: A Legal Analysis, CRS, April
15, 2002 at 65.
---------------------------------------------------------------------------
Additionally, two other concerns have been raised: First,
the 5th and final ``catch-all provision'' that delayed
notification justification is necessary because otherwise the
investigation will be ``seriously jeopardized'' allows the
government to delay notification in almost any instance; in
fact, in 92 out of 108 cases, this provision was used to
justify delayed notification. Second, Section 213 as currently
written allows law enforcement to indefinitely delay
notification.
In its May 13, 2003 letter to the Committee, the Department
indicated that it has used this authority 47 times.\53\ On
April 5, 2005, in his testimony before the Senate, the Attorney
General upped the number to 155. Delays in notification of
sneak and peek have been for unspecified durations in many
cases and as long as 180 days in others; in fact, the longest
delay has been for 406 days.\54\ The government has sought to
delay notification of sneak and peeks 248 times and every
single request has been granted.\55\
---------------------------------------------------------------------------
\53\ May 13, 2003 Letter at 8.
\54\ April 4, 2005 Letter.
\53\ May 13, 2003 Letter at 11.
---------------------------------------------------------------------------
It is important to note that by and large, this provision
is not being used in terrorism cases. In a July 5, 2005 letter
to Rep. Bobby Scott, DOJ said Section 213 had been used 153
times as of January 31, 2005; only eighteen (11.8%) uses
involved terrorism investigations. Thus, nearly 90% of ``sneak
and peek'' warrants were used in ordinary criminal
investigations.\56\ We have learned of the following additional
concerns:
---------------------------------------------------------------------------
\56\ 97 warrants were used in drug investigations and 38 were used
in other criminal investigations. Letter on file with the House
Judiciary Committee.
---------------------------------------------------------------------------
Abuse of delayed notice warrants: In April
2005, DOJ said 90-day delays are common, and that
delays in notification have lasted for as long as 180
days. The DOJ is getting more strident, as in 2003, the
DOJ said its longest delay was 90 days.
Abuse of extensions: In May 2003, DOJ
reported it had asked for 248 delay notification
extensions, including multiple extension requests for a
single warrant, and that the courts had granted EVERY
SINGLE REQUEST, the longest being 406 days.
Abuse of ``catch-all provision'': In an
April 4, 2005 letter to Chairman Sensenbrenner, DOJ
reports 92 out of 108 (85%) sneak and peek warrants
were justified because notification would ``seriously
jeopardize the investigation'' and in 28 instances that
was the sole ground for delaying notice.
Significantly, this committee never approved Section 213
and its expansive invasions into a person's privacy. It was
slipped into the final bill by the Rules Committee, and was
never sanctioned by the Committee of jurisdiction. Concerns
about this authority are widespread; in fact, Rep. Butch Otter
successfully offered an amendment to the Commerce-Justice-State
appropriations bill, H.R. 2799, on the House floor that would
have prevented delay of notification entirely
2. Sec. 216--Extension of Trap and Trace/ Pen Register Orders
Capturing internet and e-mail data is fundamentally
different than capturing phone data. While the majority argues
that this section does not capture ``content,'' there is
nothing in this section that describes what content is. So, for
example, the statute is unclear whether the Justice Department
can capture just www.aclu.org, or www.aclu.org/newmember/
registration, the latter being more than just an address, and
clearly indicating the content. There is also concern that as a
technical matter, it is impossible to separate out an e-mail
address from the content being sent either from it or to
it.\57\
---------------------------------------------------------------------------
\57\ Nancy Chang, The USA PATRIOT Act: What's So Patriotic About
Trampling on the Bill of Rights?, Center for Constitutional Rights,
November 2001.
---------------------------------------------------------------------------
3. Section 411, Revocation of Visas
Section 411 of the PATRIOT Act allows the government to
revoke visas. It expanded the reasons for inadmissibility to
include association with a designated terror group, whether the
person actually knew that the people or group he was
associating were linked to terrorism. We are concerned that
this section applies retroactively, and has been abused against
peaceful alien visitors years after their so-called association
with terrorists:
For example, Professor Tariq Ramadan's visa to teach at
Notre Dame was revoked upon charges that he supported
terrorism; Notre Dame, Scotland Yard, and Swiss intelligence
all agree the charges were groundless.\58\
---------------------------------------------------------------------------
\58\ Deborah Sontag, ``Mystery of the Islamic Scholar Who was
Barred by the U.S.,'' New York Times, October 6, 2004, A1.
---------------------------------------------------------------------------
Similarly, Nicaraguan Professor Dora Maria Tellez was
denied her visa to teach at Harvard due to her association with
the Sandinistas in the 1980s, where she helped to overthrow a
brutal dictator whom the U.S. supported.\59\
---------------------------------------------------------------------------
\59\ Associated Press, ``ACLU Requests Documents on Visas,'' New
York Times, March 17, 2005, A20.
---------------------------------------------------------------------------
4. Sec. 412--Detention of Immigrants
During the Judiciary Committee's consideration of the
PATRIOT Act in 2001, intense negotiations ensued on the issue
of detaining non-citizens for extended periods of time. The
result was Section 412 of the PATRIOT Act, which set up a
system by which the Attorney General could detain any alien he
certified as (1) deportable or inadmissible on grounds of
terrorism, espionage, sabotage or sedition or (2) a danger to
national security, as long as he initiated removal proceedings
or criminal charges within 7 days of detention. After
initiation of removal or charges, the certified alien could be
held for up to 6 months at a time. This is a power that we have
been assured verbally has never been used either by DOJ or by
the Department of Homeland Security after it was transferred
there by the Homeland Security Act. We cannot be certain about
this, of course, because we have not received 6 out of the 7
reports required to detail how and whether Section 412 has been
used.
The authority to hold someone for up to 6 months at a time
on the word of the Attorney General is an extraordinary power.
Congress measured this extraordinary power with the mandatory
reporting requirement. However, Attorney General Ashcroft's
Department of Justice was able to circumvent the spirit of the
requirement--to report on how many people were being held for
long periods without charge--by avoiding use of Section 412 in
favor of a rule the Attorney General published on September 20,
2001, before the PATRIOT Act was enacted. Prior to September
11, 2001, the INS was required to make charging determinations
within 24 hours of arrest. The rule put in place on September
20, 2001, extended that charging period to 48 hours or ``an
additional reasonable period of time'' in ``emergency or other
extraordinary circumstances.'' It is under this rule that the
extended detentions without charge outlined in the DOJ
Inspector General's report took place.
Since it has been left not only unused but intentionally
circumvented, it is enticing to propose repeal of Section 412.
Instead, Section 201 of the Civil Liberties Restoration Act
leaves Section 412 of the PATRIOT Act in place. However, for
those detained who the AG chooses not to certify, DHS would be
required to serve a Notice to Appear--the charging document
that begins an immigration proceeding--on every non-citizen
within 48 hours of his arrest or detention. Any non-citizen
held for more than 48 hours would have to be brought before an
immigration judge within 72 hours of the arrest or detention.
The provision recognizes an exemption for non-citizens who are
``certified'' by the Attorney General to have engaged in
espionage or a terrorist offense, thus preserving PATRIOT
Section 412.
5. Sec. 505--Miscellaneous national security authorities \60\--
``National Security Letters''
---------------------------------------------------------------------------
\60\ Republican Senator Pat Roberts has authored a bill which seeks
to extend the PATRIOT Act, and would give the FBI new powers to issue
administrative subpoenas in national security investigations. However,
unlike 505 NSLs, these would be available for any type of record--it is
not limited to phone, internet, credit or financial records. Instead,
it has the breadth of the infamous Section 215 request for records, and
the lack of judicial oversight of the National Security Letter. This
new combination will give the FBI whole new unchecked authority. In
fact, as written, the ``records'' subject to seizure are not even
limited to businesses. There is nothing in the draft legislation that
would prevent the FBI to request a private individual to turn over
documents in his or her possession. A copy of the bill is available at
.
---------------------------------------------------------------------------
We are concerned with section 505 of the PATRIOT Act, which
grants law enforcement sweeping authority to issue national
security letters (NSLs). National security letters are a form
of ``administrative subpoena'' for personal records which
compel the holder of the records to turn them over to the
government. NSLs grant the Justice Department access to
telephone and internet records, financial documents, and
consumer records without any sort of judicial oversight. It is
important to note that subsequent legislation redefined
``financial institutions'' subject to NSLs to include travel
agencies, pawn brokers, casinos and car dealers, among other
things.\61\ In fact, it is hard to imagine what type of record
wouldn't be covered under these new definitions.
---------------------------------------------------------------------------
\61\ 12 U.S.C.A. Sec. 3414(d) (2005).
---------------------------------------------------------------------------
It is speculated that DOJ has avoided using Section 215
because the NSL's represent a far more extensive section of the
PATRIOT Act that is permanently at its disposal. Prior to the
PATRIOT Act, NSLs could only be used to get records when there
was ``reason to believe'' someone was an agent of a foreign
power. Now they are issued on the standard of relevancy.\62\
---------------------------------------------------------------------------
\62\ Administrative Subpoenas and National Security Letters in
Criminal and Foreign Intelligence Investigations: Background and
Proposed Adjustments, CRS, Apr. 15, 2005, at 22.
---------------------------------------------------------------------------
The Justice Department has never accounted for their use.
However, in response to a FOIA request, the DOJ released a six
page list of NSLs delivered as of January 2003. The actual
recipients have been redacted, but it confirms that the Justice
Department has used this new power hundreds of times since the
PATRIOT Act was signed into law.
The Justice Department argues that they have already had
the ability to summon records through (a) administrative
subpoenas and (b) grand jury subpoenas. And in recent hearings,
the director of the FBI actually requested more NSL authority.
However, NSLs are far more intrusive than the Justice
Department is representing: First, administrative subpoenas as
limited to specific categories of cases. Second, grand jury
subpoenas can be challenged by the judge overseeing the grand
jury whereas challenges to NSLs require a whole separate action
in federal court, an action that is highly unlikely as
discussed below.
The Southern District of New York has already struck down
the telephone and toll NSL statute because it violates the
Fourth Amendment by completely barring the recipient's access
to the courts. The court found that is ``improbable,'' given
the language of the NSL, that a reasonable person would think
they could not comply or would know that they have a right to
contest the NSL.\63\ The court also found the statute violated
the First Amendment by placing a prior restraint on speech
through the non-disclosure provision.\64\
---------------------------------------------------------------------------
\63\ Doe v. Ashcroft, 334 F.Supp.2d 471, 501 (S.D.N.Y. 2004).
\64\ Mr. Nadler offered an amendment to Section 505, including one
to require regular reports on its use; one moderating the indefinite
gag order on Section 505 requests; and one allowing a 505 recipient to
challenge the order in court. Ms. Waters offered an amendment to exempt
medical records from Section 505.
---------------------------------------------------------------------------
6. Sec. 802--Definition of domestic terrorism.
Section 802 of the USA PATRIOT Act created a category of
crime called ``domestic terrorism,'' which makes criminal any
activities that ``involve acts dangerous to human life that are
a violation of the criminal laws of the United States'' when
the actor intends to ``influence the policy of a government by
intimidation or coercion.'' Previously, there was no analogous
provision in statutory law. The overly broad nature of this
provision is reason for concern when examined in light of its
potential application to and effect on peaceful protests. The
broad language of section 802 could potentially be used to
punish participants of such peaceful demonstrations as a
Greenpeace rally or the Million Man March, both of which fall
squarely within the First Amendment, but which could also be
the scene of an accidental injury and subsequent prosecution
under this provision.
7. Sec. 805--Material support for terrorism
Section 805 of the Act makes it a federal crime to provide
material support for terrorist activities. In general,
``material support'' is defined as financial resources, expert
advice or assistance, assets, housing, personnel, training, or
communications equipment.\65\ Section 805 added the terms
``expert advice and assistance'' to this list. This provision
raises numerous, serious concerns.
---------------------------------------------------------------------------
\65\ 18 U.S.C. Sec. 2339A.
---------------------------------------------------------------------------
The material support statute has repeatedly been found to
be unconstitutional. On December 3, 2003, the U.S. Court of
Appeals for the Ninth Circuit ruled that the portions of the
law prohibiting ``personnel'' and ``training'' from being
provided were void for vagueness.\66\ This is because the term
``personnel'' could criminalize persons who merely write or
publish pamphlets for a designated foreign terrorist
organization; similarly, the term ``training'' could
criminalize a person who instructs a foreign terrorist
organization on how to petition the United Nations.
---------------------------------------------------------------------------
\66\ Humanitarian Law Project v. Ashcrft, 352 F.3d 382 (9th Cir.
2003).
---------------------------------------------------------------------------
The specific amendment added by Section 805 was enjoined in
a limited case by a lower court for similar reasons. In 2004,
the U.S. District Court for the Central District of California
held that the prohibition on providing ``expert advice and
assistance'' was vague because it could encompass the
plaintiff's provision of medical and legal advice to a
terrorist organization.\67\ The court enjoined the government
from enforcing this provision against the plaintiffs.\68\
---------------------------------------------------------------------------
\67\ Humanitarian Law Project v. Ashcroft, 309F.Supp.2d 1185 (C.D.
Cal. 2004).
\68\ The court refused to find the prohibition to be overbroad and
thus declined to enjoin its enforcement entirely.
---------------------------------------------------------------------------
In July of 2003, a federal District Court judge in New York
threw out charges of material support for terrorism against
lawyer Lynne Stewart who was charged with funneling messages
from her imprisoned client, Sheik Omar Abdel Rahman.\69\ She
was charged with violating the prohibition against providing
communications equipment and personnel. Judge Koeltl ruled the
law was unconstitutionally vague, especially the personnel
provision, such that Ms. Stewart could not have known what was
prohibited. Furthermore, he held ``the government fails to
explain how a lawyer, acting as an agent of [an alleged foreign
terrorist] client. * * * could avoid being subject to criminal
prosecution as a `quasi-employee.' '' \70\
---------------------------------------------------------------------------
\69\ Opinion and order re: USA v. Sattar, al-Sirri, Steward and
Yousry (J.G. Koeltl, 02CR00395).
\70\ Id, at p. 18.
---------------------------------------------------------------------------
Finally, in June 2004, a federal jury in Idaho acquitted
University of Idaho graduate student Sami Al-Hussayen of all
charges of material support. The government charged Al-
Hussayen, a citizen of Saudi Arabia, of providing material
support for his operating and maintaining Internet sites for
the Islamic Assembly of North America and for funneling
donations to the group. Importantly, this group was not on the
list of terrorist groups, and the links Al-Hyssayen posted were
also available on the government's own website. Significantly,
in each instance, the courts found COMPLETELY LEGAL ACTIVITIES
would violate Section 805.
C. GENERAL CONCERNS WITH PATRIOT ACT REAUTHORIZATION
Beyond the specific concerns outlined above, we are also
concerned with the Committee's general failure to provide a
general sunset provision, or to provide for any sort of
additional general oversight power by the Congress with respect
to the Justice Department regarding the PATRIOT Act.
1. Lack of a General Sunset
If we have learned one thing over the last four years, it
is that the Justice Department feels it is above accountability
to this Congress in relation to the so called ``war on
terror,'' and that we, its Committee of jurisdiction, will not
get answers to our questions unless the Justice Department is
compelled to come before us and justify its use of the more
dangerous provisions of the PATRIOT Act. However, our
reasonable attempts to retain our oversight through periodic
sunsets were thwarted completely on party-line votes:
Mr. Scott and Mr. Nadler offered second
degree amendments that would have put a four year and
six year sunset on Section 206, the John Doe Roving
Wiretap, and Section 215, Intelligence orders for any
tangible thing, respectively They were rejected in
favor of a ten-year amendment that is so far in the
future, its review will be almost meaningless.
Mr. Schiff offered an amendment to sunset
the Lone Wolf provision, which was originally passed in
the Intelligence Reform bill only 8 months ago. We
believe making this provision permanent so soon and
without any information on its use is unwise and we
therefore supported Mr. Schiff's proposal to review
this broad new provision in three years. This too was
rejected in favor of permanency.
Mr. Nadler and Ms. Lofgren, in the spirit of
comity, offered an amendment to set all of the expiring
provisions on a ten year sunset cycle. It was flatly
rejected by the majority.
Considering that many of the Majority's members spoke in
favor of sunsets throughout our 12 hearings, we were
disappointed that they were swayed into objecting to even the
most reasonable of amendments. That all of these new powers
have been made largely permanent contributed to our collective
decision not to support this bill.
2. Lack of General Oversight
In addition, there is a need for additional congressional
oversight of the PATRIOT Act. There are numerous reporting
requirements under the Electronic Communications Privacy Act,
the Foreign Intelligence Surveillance Act and National Security
Letters. However, many of those are classified, and therefore
cannot even be publicly discussed. These classified accounts
effectively protect the Administration from having to answer
for the use of the authorities in any way that they can be held
accountable for--and they have been exploited by the Majority
to at once claim that we have oversight capabilities, yet no
abuses are known.
Moreover, the Administration claims that any public
accounting would put our nation at risk of further terror
attacks. However, we have heard no logical arguments about why
simply reporting the number of times an authority has been used
puts anyone at risk. Knowing that John Doe Roving Wiretaps have
been used 49 times, for example, does nothing to further
terrorist causes. Knowing that nearly 90 percent of ``sneak and
peek'' warrants were used in non-terrorist cases does not put
us at risk of another attack.
Besides, this argument is completely undercut by the
Administration's selective declassification of numbers and
examples when it is politically convenient for it to do so. We
have asked for numbers and examples for years and have been
repeatedly told that the information was classified. Then, in
April of this year, when it became clear that many members of
this House and in the Senate would not be acquiesced by hollow
reassurance, numbers and anecdotes suddenly became available.
However, anecdotes are not oversight. Non-terror examples
of how a provision has been used has no bearing on whether they
should be renewed, and as this bill has it, renewed as-is and
without any new protections. We are sure the Justice Department
can find one or two feel-good stories for each provision of the
U.S. code, but that is not the point. Oversight is about
deciding whether, on the whole and after examining the totality
of the circumstances, a provision's usefulness outweighs the
privacy and other rights it infringes upon. Regrettably, the
Justice Department has not given us enough information to make
that determination.
In addition, we find it hard to believe that the number of
times a section of the PATRIOT Act has been used suddenly
became no longer a security threat earlier this year without
any change in the law or our standing in the fight against
terror. Clearly, these provisions were wrongly classified from
the beginning if they could be released for political reasons
in the Administration's efforts to reauthorize the PATRIOT Act.
This sort of bad faith on the Administration's part clearly
calls for statutorily mandated reporting requirements.
H.R. 3199 also does nothing to address the myriad of
concerns related to the unwarranted amount of secrecy that
surrounds the original PATRIOT Act. The PATRIOT Act keeps
secret, even from Congress, how many of the powers are being
used, prohibits recipients of search orders from disclosing
they even received such an order, including to their attorney,
and allows the government to secretly search people's homes and
seize their property. The Minority attempted to remedy many of
these egregious secrecy provisions, but was thwarted in all of
its attempts to provide reasonable measures to allow for more
light to be shed on the government's actions.\71\
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\71\ For example, Mr. Berman offered an amendment that would have
required reporting on data-mining practices, which to date, this
Congress only finds out about through news reports after personal
information is leaked or otherwise abused. He withdrew that amendment
after it became clear it would not pass. Mr. Conyers offered an
amendment that would have required reporting on the disclosure of
electronic communications, a reporting requirement that was reporting
on the disclosure of electronic communications, included in the
Judiciary passed bill in 2001 and supported unanimously, but was later
stripped by the Rules Committee without explanation. Mr. Conyers'
amendment failed. Similarly, Mr. Schiff offered an amendment that would
have required public reporting on the use of National Security Letters
and the Sneak and Peek authority, two provisions that the Justice
Department has been secretive about. That amendment failed on party
lines as well.
---------------------------------------------------------------------------
The PATRIOT Act allows the government to keep secret, even
from Congress, how many of these authorities are being used.
While there are reporting requirements the Department of
Justice must adhere to, as discussed in more detail above, they
have on numerous occasions either refused to provide they
necessary information or have given the Congress only useless
information. For example, it was only after a FOIA request by
the ACLU was upheld that the DOJ released any information about
its use of Section 505 National Security Letters. However, what
the DOJ released was a six-page document with every single line
blacked out. Thus, while we know the DOJ is using this
authority often, that is all we know, and further attempts to
gain information have been thwarted. Similar refusals to
provide even descriptive statistics on the use of many
provisions are, unfortunately, quite common.
As an additional safeguard, Ms. Lofgren introduced an
amendment which would ensure that a person's right to challenge
their detention is not undermined by any Act of Congress. Her
amendment specified that no Act of Congress passed since 9/11,
including the PATRIOT Act, shall be construed to suspend the
right to apply for a writ of habeas corpus. It would simply
have protected a right that was deemed so important that is was
included in the U.S. Constitution. However, after initially
passing on a voice vote, the Majority moved to reconsider, and
the amendment was overturned on a straight party-line vote.
IV. The Legislation Does Nothing To Address the Many Unilateral Abuses
of The Administration in the War Against Terror
Since we were given the ability to review the PATRIOT Act,
we feel it also provided an opportunity to review all of the
U.S.'s actions in the broader War on Terror as it is impossible
to discuss the PATRIOT Act without referencing other
administrative actions that have occurred since 9/11.
Unfortunately, the majority flatly rejected our attempts to
review other actions by the United States government, including
unilateral actions that were taken so as to circumvent even
small protections that existed in the USA PATRIOT Act. It is
clear that numerous abuses have occurred and we fear the
majority's unwillingness to address them will only lead to
further abuses in the years to come.
A. MATERIAL WITNESS STATUTE
An undisclosed number of the individuals detained after
September 11, 2001, have been arrested on material witness
warrants pursuant to the Department's authority under 18 U.S.C.
Sec. 3144. Although the Department refuses to reveal the exact
number of individuals who have been held as such witnesses, a
November 2002 Washington Post article identified 44 material
witnesses and asserts that almost half of them never testified
before a grand jury.\72\ In its May 13 letter to the Committee,
the Department put the number of material witnesses detained as
of January 2003 in conjunction with September 11 to be fewer
than 50.\73\ The Justice Department has subsequently refused to
update that number.
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\72\Steven Fainaru & Margot Williams, Material Witness Law has Many
in Limbo; Nearly Half Held in War on Terror Haven't Testified, Wash
Post, Nov. 24, 2002, at A1.
\73\ May 13 Letter at 50.
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The Department has refused to provide any further
information on those being held as material witnesses, claiming
that it cannot do so because of the grand jury secrecy rules
and sealing orders that have been entered by the courts, and
has refused to release the orders themselves. Press reports,
however, indicate that many individuals have been held as
material witnesses for significant periods of time prior to
testifying before grand juries, if they testified at all.
This implies the government is using the material witness
statute not to secure testimony, but to secure the detention of
individuals it cannot connect with terrorism or other crimes.
It appears the department is holding detainees despite the fact
it could secure their testimony by deposition, which the
statute provides for.\74\ It also appears from news articles
that at least two individuals, Mohammed El-Yacoubi and
Abdulmuhssin El-Yacoubi, were held as material witnesses in
connection with a grand jury investigation in which they were
the targets of the investigation.\75\
---------------------------------------------------------------------------
\74\ See, e.g., United States v. Awadallah, 2002 U.S. Dist. LEXIS
1430, 01 CR 1026 (SAS), at *96-97 (S.D.N.Y. Jan. 31, 2002).
\75\ Jerry Seper, Israel Bars Entry to Men INS Cleared, Wash.
Times, Apr. 1, 2002; Chuck Raasch, Virginia City is Newest Front in
Terror War, Indianapolis Star, Mar. 31, 2002.
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The Inspector General has agree to investigate how the
statute was wrongly applied to Brandon Mayfield, arrested for
bombing a train in Madrid, and what role his Muslim faith
played in the FBI's decision to hold him as a material witness.
The material witness statue was scheduled to be part of a
bipartisan oversight plan crafted in September of 2003. After
several months of effort, committee staff were unable to
convince their Republican counterparts that action was
necessary. While we had drafted an extensive bipartisan letter
inquiring about all the policies and statistics about the use
of this statute, just before delivery the majority refused to
sign the letter and claimed it was no longer concerned about
the statute because the warrants were signed by a judge and
therefore couldn't possibly be abused.
B. TORTURE
We now know that the Justice Department led the effort to
legally excuse acts of torture. The abuse of Iraqi and other
prisoners was not just the work of a few rogue soldiers, but
the obvious consequence of the Justice Department declaring
that the President and his military are accountable to no one.
A number of legal opinions generated by the Justice Department
were either leaked or formally released by the President last
year. They include:
January 22, 2002 Department of Justice
memorandum regarding ``Application of Treaties and Laws
to al Qaeda and Taliban Detainees''
February 1, 2002 Attorney General Letter to
President regarding status of Taliban detainees;
February 7, 2002 Department of Justice
memorandum regarding ``Status of Taliban forces Under
Article 4 of the Third Geneva Convention of 1949''
February 26, 2002 Department of Justice
memorandum regarding ``Potential Legal Constraints
applicable to Interrogations of Persons Captured by
U.S. Armed Forces in Afghanistan''
August 1, 2002 Department of Justice letter
regarding application of Convention Against Torture and
Rome Statute on the International Criminal Court
August 1, 2002 Department of Justice
memorandum regarding ``Standards of Conduct for
Interrogation under 18 U.S.C. Sec. Sec. 2340-2340A.''
In tandem, these documents argued that (1) the Geneva
Conventions and other international laws banning torture did
not apply to our detainees, (2) if they did, they could be
construed so narrowly that events such as those at Abu Ghraib
are not legally ``torture,'' and (3) even if those acts could
be defined as ``torture,'' the Administration and its military
are not liable under the President's Commander-in-chief
authority and other defenses. On December 30, 2004, the Justice
Department released a new memo that improved upon its previous
rulings: it redefined what ``torture'' was under the law to no
longer require excruciating and agonizing pain equivalent to
organ failure or death, and reversed its previous position that
those committing torture could be shielded from criminal
liability by good intentions.\76\ It did not however,
explicitly revoke the previous memos' holding that the
President's Commander-in-chief authority was not bound by any
American or international law.
---------------------------------------------------------------------------
\76\ The new memo is available at http://www.usdoj.gov/olc/
dagmemo.pdf.
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It is within the Justice Department's discretion whether to
prosecute contractors who are implicated in the scandal, and to
date, has indicted one person for criminal assault for killing
a detainee within his custody.\77\ And while ``the Justice
Department has received a number of criminal referrals
involving allegations of prisoner mistreatment by CIA
operatives,'' it has not brought any charges.\78\ Finally, the
Justice Department does have the authority to charge members of
the military for their criminal acts over seas if either (a)
they are no longer in the military, or (b) committed the acts
with non-military accomplices.\79\ This authority may be
appropriate to exercise in the instances where the military is
refusing to charge its members even in contradiction with the
recommendations of its own investigators. For example, 17
soldiers were recently found to be responsible for the death of
three detainees, yet their commanders will not press charges;
only one was discharged and one was given a letter of
reprimand.\80\
---------------------------------------------------------------------------
\77\ U.S. v. Passaro, No. 94-CR-211-1, (E.D.N.C.), indictment
available at http://news.findlaw.com/cnn/doc/torture/
uspassargo61704ind.html.
\78\ Richard B. Schmitt, U.S. May Still Charge ``Enemy Combatant,
Gonzales Says, L.A. Times, Mar. 8, 2005.
\79\ Military Extraterritorial Jurisdiction Act, Pub. L. No. 106-
523 (Nov. 22, 2000).
\80\ Douglas, Jehl, Pentagon Will Not Try 17 G.I.'s Implicated in
Prisoners' Deaths, NY Times, Mar. 26, 2005.
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C. RENDITION
Maher Arar, was detained by the INS during a layover at JFK
airport in New York. After authorities were unable to obtain
any intelligence from Arar or establish a connection between
him and Al Qaeda, Deputy Attorney General Larry Thompson
ordered him deported to Syria--despite his professed Canadian
citizenship and his request to return to Canada. Arar was
jailed and tortured in Syria for ten months before his release
in October 2003. No one was ever able to connect him in any way
to terrorism or to Al Qaeda.
Even if Arar was correctly labeled a threat to national
security, he was free to request deportation to Canada, and was
entitled to be sent somewhere he would not be harmed.\81\ The
Attorney General's Office argues that removing Arar to Canada
would have been prejudicial to national security, and that it
was justified in returning Arar to Syria under the prevailing
statute.\82\ However, even if the Attorney General had found
reason to deny Arar deportation to Canada, he might have sent
him to any country in the world. The law provides that if all
other statutorily defined options are inappropriate, the
Justice Department may send an alien to any country willing to
receive him.\83\ There may have been a tactical advantage in
turning Arar over to the Syrian government, but there was no
legal requirement to do so.
---------------------------------------------------------------------------
\81\ Current law allows for an expedited removal of foreign
nationals on ``security and related grounds,'' for (A) generally
subversive activity, (B) terrorist activity or (C) generally
threatening foreign policy (8 U.S.C. Sec. 1182(a)(3)). On a finding of
one of the above three grounds by an immigration court, the Attorney
General reviews the decision. If he approves and finds that
``disclosure of the information would be prejudicial to the public
interest, safety or security,'' he can order immediate removal without
hearing or inquiry (8 U.S.C. Sec. 1225(c)). The Attorney General is
empowered to disregard such a request only in narrowly defined,
technical circumstances. 8 U.S.C. Sec. 1231(b)(2)(C) provides that the
Attorney General may deny an alien deportation to a designated country
if he finds: (i) that the alien failed to designate a country promptly,
(ii) that the designated country fails to respond to a deportation
request within thirty days, (iii) that the designated country is not
willing to accept the alien, or, (iv) that removal to the designated
country is prejudicial to the United States.
\82\ 8 U.S.C. Sec. 1231(d)(2)(D) (If the Attorney General does not
deport an alien to the country of his choice, the alien is to be
returned to a nation is which he is a national or citizen, given the
nation accepts).
\83\ 8 U.S.C. Sec. 1231(b)(2)(E)(vii).
---------------------------------------------------------------------------
Deportation to Syria when imprisonment and torture are
imminent stands in violation of both U.S. and international
law. The International Convention Against Torture prohibits the
removal of a person to another state ``where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.'' \84\ Federal law affirms the
convention and condemns extradition to a country in which
``there are substantial grounds for believing the person would
be in danger of being subjected to torture.'' \85\ The State
Department recognizes the Syrian government's use of torture
tactics--including electrical shock, removal of fingernails,
and objects forced into the rectum.\86\
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\84\ International Convention Against Torture, and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, art. 3.
\85\ 8 C.F.R. Sec. 235.8. See also, Pub. L. 105-277, Div. G, Title
XXII, Section 2242. There are exceptions to the policy (8 U.S.C.
Sec. 1231(b)(3)(B)) but the Justice Department would have had to
demonstrate reasonable grounds to believe Arar is a credible danger to
national security.
\86\ County Reports on Human Rights Practices, 2002, available at:
http://www.stage.gov.
---------------------------------------------------------------------------
Arar's case is not unique. Estimates puts the number of
renditions at over a hundred, although their secrecy prevents
us from knowing the extent of their use. The Administration
keeps saying it does not use torture and does not render
suspects, yet lay employees admit that it was a common place
activity. Until three months ago, Michael Scheuer was a senior
intelligence analyst for the CIA; he has now come forward to
explain that,
They don't have the same legal system we have. But we
know that going into it * * * And so the idea that
we're gonna suddenly throw our hands up like Claude
Raines in ``Casablanca'' and say, ``I'm shocked that
justice in Egypt isn't like it is in Milwaukee,''
there's a certain disingenuousness to that.\87\
\87\ CIA Flying Suspects to Torture?, CBSNews.com, Mar. 6, 2005.
---------------------------------------------------------------------------
A former Justice Department lawyer even admits that, ``The
Convention only applies when you know a suspect is more likely
than not to be tortured, but what if you kind of know? That's
not enough. So there are ways to get around it.'' \88\ In fact,
the Convention says nothing about a legal standard of ``more
likely than not''--the correct standard is ``substantial
grounds.'' The ``more likely than not'' standard is a highly
constrained interpretation of the Convention that obviously
fails to honor its spirit (and appears intended to do just
that). And a recently retired FBI agent has said, ``They loved
that these guys would just disappear off the books, and never
be heard of again * * * They were proud of it.'' \89\
---------------------------------------------------------------------------
\88\ Jane Mayer, Outsourcing Torture, The New Yorker, Feb. 8, 2005.
\89\ Id.
---------------------------------------------------------------------------
D. ENEMY COMBATANTS
The Justice Department is authorized to give legal advice
in response to a request from the President, federal agencies,
and military departments.\90\ Under this authority, the Justice
Department laid the legal grounds for the indefinite and
illegal detention of enemy combatants by advising that al Qaeda
and Taliban forces were not entitled to protection under the
Geneva Conventions. The Department also determined that
individuals arrested in the United States both citizens and
non-citizens, were not entitled to the protection of the sixth
amendment and if certified as enemy combatants, could be held
by the military incommunicado without access to lawyers or the
court for so long as the government deemed it necessary.
Instead of meeting the procedures required under the
Constitution and our international agreements, the
Administration has constructed a farce of process and fairness.
---------------------------------------------------------------------------
\90\ 28 U.S.C. Sec. Sec. 511-513 (2004).
---------------------------------------------------------------------------
Most importantly, the Office of Legal Counsel has advised
that these detainees fall somewhere between civilians and
soldiers and therefore are devoid of the protections that apply
to either.\91\ This is in clear conflict with 50 years of legal
precedent that has held that a person ``cannot fall outside of
the law.'' \92\ Instead of simply holding individualized
hearings about whether each detainee is a prisoner of war or
just a ``protected person''--as required by the Geneva
Conventions--and then providing the appropriate judicial
procedures, the Defense Department now holds newly imagined
Combatant Status Review Tribunals (CSRT) and Annual Review
Board procedures that don't meet the international obligations
for the treatment of either group.\93\
---------------------------------------------------------------------------
\91\ See supra, discussion of memo advising the Administration on
the laws of war.
\92\ International Committee of the Red Cross, ``Commentary: IV
Geneva Convention Relative to the Protection of Civilian Person in Time
of War,'' (Geneva, 1958).
\93\ See letter from Congressman John Conyers, Jr. to The Honorable
Gordon R. England, regarding the legality of detention of Guantanamo,
November 9, 2004, on file with the House Judiciary Committee Democratic
Staff.
---------------------------------------------------------------------------
A federal court has recently ruled that at least one of
these procedures--the CSRT--violates the detainees' Fifth
Amendment rights to due process.\94\ The court found
particularly troubling that the detainee Another federal court
has found that the military commissions are also in violation
of the law, because they do not meet Geneva Convention
requirements.\95\ It held that until the detainees are
adjudicated either POW's or protected persons, they must be
afforded the rights under the Afraid that Administration will
deport more of these detainees to countries where they may be
tortured, attorneys have secured a preliminary injunction
keeping the government from removing Guantanamo detainees
without giving the detainee's attorney at least 30-day notice
of its intent to release or transfer the detainee.\96\ This is
in light of the fact that 200 detainees have already been
transferred overseas, 65 of whom on the condition that they be
further detained by the country of receipt.\97\
---------------------------------------------------------------------------
\96\ Abdah v. Bush, 2005, WL 711814 (D.D.C. Mar. 29, 2005).
\97\ Abdah v. Bush, 2005, WL 589812 (D.D.C. Mar. 12, 2005).
\94\ In re Guantanamo Cases, 355 F.Supp.2d 443 (D.D.C.) (finding
that the deck was so stacked against the detainees that the hearings
were near meaningless).
\95\ Hamdan v. Rumsfeld, 355 F.Supp.2d 152 (D.D.C. 2004).
---------------------------------------------------------------------------
E. SELECTIVE ENFORCEMENT OF IMMIGRATION PROVISIONS/RACIAL PROFILING
The Justice Department's racial profiling guidelines exempt
terrorism investigations from the general ban on the use of
these tactics. While the Department widely used racial
profiling--the interview program of middle eastern men who came
into the country before 9/11, the interview of 50,000 Iraqis,
the FBIs counting of mosques and Muslims, and the registration
of over 83,000 middle eastern men under NSEERS--we have
received no useful intelligence information and have prosecuted
only a handful of people for terrorism related charges. In
fact, the GAO found that the information gathered from such
programs sits around in federal databases without any specific
plans for use.\98\ This has led to former Attorney General John
Ashcroft to admit that racial profiling doesn't work. During a
press conference, he admitted that al Qaeda is using Europeans,
Africans and South Asians. In fact, they recruit from ``any
nationality inside target countries.'' However, the Department
continues to profile and selectively enforce laws on the basis
of race, nationality and religion.
---------------------------------------------------------------------------
\98\ Justice Department's Project to Interview Aliens After
September 11, 2001, GAO, GAO-03-459, April 2003 at 6.
---------------------------------------------------------------------------
F. EXCESSIVE COLLECTION OF PERSONAL DATA
Since the passage of the PATRIOT Act, the press has
reported massive FBI collections of personal information about
individuals suspected of no wrongdoing. It is unclear what
precise authority the FBI relied upon to collect this data, or
the extent to which investigative powers granted by the PATRIOT
Act were used by the bureau to amass this information.
For example, in December 2003, the press reported that
``[t]he FBI has been checking hotel and airline records against
terrorist watch lists in advance of a New Year's Eve
celebration expected to draw 300,000 to Las Vegas.'' \99\
Though FBI conceded the personal records had not borne out a
particular threat, a FBI spokesman was quoted as saying,
``[t]he information we're getting, the names, are being run by
all the different watch lists[.] People can take comfort that
anything and everything that can be done is being done.'' \100\
An article in the Las Vegas Review-Journal suggests that the
information may have been collected pursuant to Section 505 of
the PATRIOT Act: ``[c]asino operators said they turned over the
names and other guest information on an estimated 270,000
visitors after a meeting with FBI officials and after receiving
national security letters requiring them to yield the
information.''\101\
---------------------------------------------------------------------------
\99\ Ken Ritter, Associated Press, In Vegas Matching Airline, Hotel
Records with Terror Lists, AP Dec. 31, 2003.
\100\ Id.
\101\ Ron Smith, Sources: FBI Gathered Visitor Information Only In
Las Vegas, Las Vegas Review-Journal, Jan. 7. 2004, at 1A.
---------------------------------------------------------------------------
Likewise, last spring the New York Times reported that
``[i]n the days after the Sept. 11 terrorist attacks in 2001,
the nation's largest airlines, including American, United and
Northwest, turned over millions of passenger records to the
Federal Bureau of Investigation[.]'' \102\ An FBI official told
the newspaper that the agency requested the data ``under the
bureau's general legal authority to investigate crimes and that
the requests were accompanied by subpoena, not because that was
required by law or because the bureau expected resistance from
the airlines, but as a `course of business' to ensure that all
proper procedures were followed.'' \103\ The Electronic Privacy
Information Center later learned through its Freedom of
Information Act litigation that the FBI in fact collected 257.5
million passenger records, and has since incorporated them into
its permanent investigative databases.\104\ It is unclear
whether authorities granted by the PATRIOT Act enabled the FBI
to collect this vast amount of information, and if so, which
provisions.
---------------------------------------------------------------------------
\102\ John Schwartz and Micheline Maynard, Airlines Gave FBI
Million of Records on Travelers After 9/11, NY Times, May 1, 2004 at
A10.
\103\ Id.
\104\ See Hardy Declaration; Leslie Miller, FBI Keeping Records on
Pre-9/11 Travelers, AP, Jan. 15, 2005.
---------------------------------------------------------------------------
G. UNAUTHORIZED DETENTION OF ALIENS
Following the terrorist attacks in New York City and
Washington, D.C., the Attorney General directed the FBI and
other members of federal law enforcement to utilize ``every
available law enforcement tool'' to arrest persons who
``participate in, or lend support to, terrorist activities.''
\105\ But in so doing, the FBI took advantage of our nation's
immigration laws by detaining aliens for extended periods of
time without any real authority and committing abuses to those
same aliens during their detainment.
---------------------------------------------------------------------------
\105\ Memorandum from Attorney General John Ashcroft to United
States Attorneys entitled ``Anti-Terrorism Plan'' (September 17, 2001).
---------------------------------------------------------------------------
The ``hold until cleared'' policy that Department of
Justice (``DOJ'') officials communicated to the Immigration and
Naturalization Services (``INS'') and FBI applied to all of the
``September 11 detainees'' who the FBI categorized as either
being ``of interest,'' ``of high interest,'' or ``of
undetermined interest.'' In a September 27, 2001 e-mail, DOJ
Senior Counsel observed that while those individuals found to
be legally present in the United States may only be held so
long as law enforcement was pursuing criminal charges or a
material witness warrant against them, any others ``believed to
be involved in the attacks * * * may be detained, at least
temporarily, on immigration charges.'' \106\ In all, more than
1,200 citizens and aliens nationwide were detained pursuant to
this policy within two months of the attacks, and that number
may even be substantially higher given that a senior official
in the Department's Office of Public Affairs stopped reporting
the cumulative totals based on the belief that the ``statistics
were becoming too confusing.'' \107\
---------------------------------------------------------------------------
\106\ Office of the Inspector General, Department of Justice, the
September 11 Detainees: A Review of the Treatment of Aliens Held on
Immigration Charges in Connection with the Investigation of the
September 11, Attacks 34-39 (April 2003) (emphasis added).
\107\ Id. at 1.
---------------------------------------------------------------------------
What's more, during this detainment period, these
individuals were not informed of the charges against them for
extended periods of time; were not permitted contact with
attorneys, their families and embassy officials; remained in
detention despite having no involvement in terrorism; and were
physically or verbally abused or mistreated in other ways. This
included officers who ``slammed detainees against the wall,
twisted their arms and hands in painful ways, stepped on their
leg restraint chains, and punished them by keeping them
restrained for long periods of time,'' \108\ all of which was
captured on videotape. Despite being seen on videotape, these
officers denied any involvement upon Inspector General
inquiry.\109\ Finally, even when officials permitted detainees
to meet with counsel, the Office of Inspector General found
that several officers illegally recorded these meetings in
clear violation of the Fourth and Sixth Amendments.\110\
---------------------------------------------------------------------------
\108\ Office of Inspector General, U.S. Dep't. of Justice,
Supplemental Report on September 11 Detainees' Allegations of Abuse at
the Metropolitan Detention Center in Brooklyn New York 46 (Dec. 2003).
\109\ Id. at 46-47.
\110\ Id. at 31-33.
---------------------------------------------------------------------------
H. CLOSED IMMIGRATION TRIALS
Ten days after the 9/11 attack on the United States, the
Attorney General implemented new procedures for handling
immigration cases involving aliens linked to the government's
ongoing investigation of the September 11th attacks and other
terrorist activity against the United States. These immigration
matters were identified as ``Special Interest Cases.'' In
conjunction with that effort, the Chief Immigration Judge
instructed immigration judges and court administrators to close
to the public hearings involving Special Interest Cases, and to
bar access to the related administrative record and docket
information. These instructions were justified as part of the
effort to protect national security and public safety by
preventing sophisticated terrorist organizations like Al Qaeda
from learning about the government's ongoing terrorism
investigation.
On May 28, 2002, the Department published an interim
regulation that provided a mechanism for the government to ask
an immigration judge to place a protective order over
information that, while not classified, was sensitive and could
damage law enforcement or national security interests if
released beyond the parties to a specific immigration
proceeding. If a protective order is granted, the alien,
counsel, and anyone else approved by the government, are given
full access to the protected information, but they are not
permitted to disclose the information to others. The alien may
challenge the admissibility of the evidence and may appeal the
granting of the protective order as part of an appeal to the
Board from the immigration judge's decision. The public may
attend all portions of the alien's hearing, except those parts
where the protected information is discussed. A violation of
the protective order could render the alien ineligible for
discretionary relief and could subject the alien's attorney to
disciplinary procedures.
I. THE ATTORNEY GENERAL'S GUIDELINES ON DOMESTIC SURVEILLANCE
On May 30, 2002, Attorney General Ashcroft announced
revisions to four sets of internal guidelines that govern how
the FBI conducts its investigations.\111\ The Attorney General
undertook his efforts without the benefit of congressional
input, citing the need to strengthen the ability of FBI agents
in the field to detect and prevent future acts of terrorism.
Critics of the revisions, however, believe they will do little,
if anything, to improve the FBI's ability to combat terrorism.
Indeed, many believe that the revisions will do nothing more
than invite the FBI to engage in the type of abuses that
precipitated the issuance of the guidelines in the first place.
---------------------------------------------------------------------------
\111\ The four sets of guidelines that were revised include:
I. The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Terrorism Investigations:
II. The Attorney General's Guidelines Regarding the Use of
Confidential Informants;
III. The Attorney General's Guidelines on Federal Bureau of
Investigation Undercover Operations; and
IV. The Memorandum for the Heads and Inspectors General of
Executive Departments and Agencies: Procedure for Lawful, Warrantless
Monitoring of Verbal Conversations.
The charges undertaken by Attorney General Ashcroft begin with the
change in the guidelines title to the FBI Guidelines on General Crimes
Racketeering Enterprises and Terrorism Enterprises. Moreover, the
Attorney General also ``reportedly'' change the central role of the FBI
by stating, ``[t]he highest priority is to protect the security of the
nation and the safety of the American people against the depredations
of terrorists and foreign aggressors.'' He tried to emphasize this
change by drafting a new introduction to the guidelines that states
that there are ``a number of changes designed to * * * facilitate the
FBI's central mission of preventing the commission of terrorist acts
against the United States and its people.''
---------------------------------------------------------------------------
The new guidelines give the FBI much broader authority to
investigate potential terrorist enterprises. In addition to
extending time parameters and devolving authority to the SACs,
the guidelines allow investigations to be conducted with no
annual review and when no evidence of criminal activity is
present.
The most drastic changes undertaken by Attorney General
Ashcroft are outlined in Section VI (see, ``Counter Terrorism
Activities and other Authorizations'') of the new guidelines,
which impact First and Fourth Amendment rights. Among other
things, that section specifically authorizes activities that
will detect information about terrorism and other crimes ``even
in the absence of checking of leads, preliminary inquiry, and
full investigation.'' For instance, the guidelines authorize
the collection and use of information from databases either
public, commercial or non-profit, otherwise known as ``data
mining.'' Second, agents are authorized to ``attend any place
or event on the same terms and conditions as the public
generally.'' Third, the FBI can ``conduct research including
online research, accessing online sites and forums, on the same
terms as the public generally.'' \112\ Finally, the guidelines
explicitly declare that files kept as a result of any
investigations conducted under the newly enacted guidelines,
including those authorized in Section VI, are not subject to
the protections of the Privacy Act.
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\112\ In an attempt to address some civil liberties concerns, the
Attorney General included language in this section that prohibited FBI
agents from conducting online searches using the names of individuals,
except when incidental to topical research such as authors or parties
to cases. The guidelines further state that, ``[t]he law enforcement
activities authorized in this part do not include maintaining files on
individuals solely for the purpose of monitoring activities protected
by the First Amendment or the lawful exercise of any other rights
secured by the Constitution or laws of the United States.''
---------------------------------------------------------------------------
The revisions also relax restrictions against the use of
intrusive techniques in preliminary inquiries and general
investigations. In addition to removing terms and phrases
cautioning against the use of intrusive techniques that may
invade the privacy of and reputation of subjects of preliminary
inquiries, the guidelines state, ``the FBI shall not hesitate
to use any lawful techniques consistent with these guidelines,
even if intrusive, where the intrusiveness is warranted in
light of the seriousness of a crime, or the strength of the
information indicating its commission or potential future
commission.'' The guidelines, also remove the requirement for
supervisory approval for the use of these intrusive techniques.
Many of these safeguards had been implemented as far back as
1976 with the introduction of the Levi Guidelines to address
civil liberty concerns. Regrettably, Attorney General Ashcroft
turned a blind eye to these concerns.
Finally, the Ashcroft guidelines considerably relax the
supervisory role of FBI HQ for all criminal investigations. For
example, the guidelines permit field agents to extend the
duration of preliminary inquiries for up to one full year
without first having to obtain approval from FBI HQ.
Furthermore, as pointed out in the previous section, the
guidelines permit these agents to obtain such extensions while
also enabling them to utilize many of the more intrusive
investigative techniques. The combination of these two changes
vests field agents with excessive authority and runs counter to
many initiatives announced by Director Mueller to promote
increased coordination between field offices and FBI HQ.
J. MIS-CLASSIFICATION OF TERRORISM INVESTIGATIONS
We are also disappointed that the majority has refused to
look into the continuing efforts by the Administration to
misclassify terrorism investigations. We hope that the U.S.
will find and catch those who we know to be terrorists.
However, it does no one any good for the Administration to lie
about how many terrorism-related cases it has brought. In June
2005, the Washington Post reported that only 39 people--not the
200 implied by President Bush--have been convicted of
terrorism-related crimes since 9/11. In fact, 180 of the people
charged in these ``terrorism probes'' had no demonstrated
connection to terrorism or terrorist groups; most people were
convicted of minor crimes such as making false statements.
Similarly, 60 of 62 ``terror prosecutions'' in New Jersey in
2002 were against Middle Eastern men who paid others to take
school-related English proficiency tests for them. However, the
majority has refused to take any action to determine how
successful our terrorism investigations and our war on
terrorists actually has been, and, if these numbers are true,
what steps are needed to make sure we actually are able to
catch and prosecute terrorists.
K. SAFE HAVENS FOR TERRORIST ASSETS
Another concern we have with the underlying legislation is
that it fails to deal with the current law problems limiting
the ability of victims and their families to obtain
compensation for the damages they have suffered.
While, it may seem difficult to conceive of situations
where the United States prevents its citizens from seeking
justice for terrorist acts, there are several examples of how
the currentAdministration sought to barr victims from obtaining
legal judgment. First, the Administration barred the Iran hostages held
from 1979-1981 from satisfying their judgment against the government of
Iran. In 2000, they initiated a suit against Iran under the terrorist
State exception to the Foreign Sovereign Immunity Act. While a federal
district court held Iran to be liable, the U.S. government intervened
and argued that the case should be dismissed because Iran had not been
designated a terrorist state at the time of the hostage incident and
because the Algiers Accords that led to the hostage release required
the United Sates to bar the adjudication of suits based on that
incident.\113\ As a result, the hostages received no compensation for
their suffering.
---------------------------------------------------------------------------
\113\ Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140
(D.D.C. 2002), aff'd 333 F.3d 228 (D.C.Cir. 2003), cert. denied 124
S.Ct. 2836 (2004).
---------------------------------------------------------------------------
Second, American servicemen who were harmed in a Libyan
sponsored bombing of the La Belle disco in Germany were
obstructed from obtaining justice for the terrorist acts they
suffered. While victims of the attack pursued settlement of
their claims against the Libyan government, the Administration
lifted sanctions against Libya without requiring as a condition
the determination of all claims of American victims of
terrorism. As a result of this action, Libya abandoned all
talks with the claimants. Further, because Libya was no longer
considered a state sponsor of terrorism, the American
servicemen and women and their families were left without
recourse to obtain justice. The La Belle victims received no
compensation for their suffering.
In addition, a group of American prisoners who were
tortured in Iraq during the Persian Gulf war were barred by the
Bush Administration from collecting their judgment from the
Iraqi government.\114\ Although the 17 veterans won their case
in the District Court of the District of Columbia, the
Administration argued that the Iraqi assets should stay frozen
in the U.S. bank account to aid in the reconstruction of
Iraq.\115\ Claiming that the judgment should be overturned, the
Administration deems that rebuilding Iraq is more important
than the suffering of fighter pilots who during their 12-year
imprisonment suffering beatings, burns, and threats of
dismemberment.
---------------------------------------------------------------------------
\114\ David G. Savage, Justices Are Asked to Reject POWs' Case
Against Iraq, L.A. Times, March 23, 2005.
\115\ Ultimately, the Second Circuit overturned the matter stating,
(1) the United States should have been allowed to intervene in the
district court even post judgment because of its policy concerns; (2)
we were correct that the President was not granted the authority by
Congress to nullify non-sanctions/appropriations laws, including our
jurisdictional statute (FSIA), in the April 2003 Emergency Wartime
Supplemental Appropriations Act; but, (3) the court sua sponte ruled
that because of an intervening change in law in a separate case in
January 2004 (Cicippio-Puleo), the decision in Acree had to be vacated.
---------------------------------------------------------------------------
Finally, the World Trade Center victims were barred from
obtaining judgment against the Iraqi government. In their claim
against the Iraqi government, the victims were awarded $64
million against Iraq in connection with the September 2001
attacks. However, they were rebuffed in their efforts to attach
the vested Iraqi assets. While the judgment was sound, the
Second Circuit Court of Appeals affirmed the lower court's
finding that the Iraqi assets, now transferred to the U.S.
Treasury, were protected by U.S. sovereign immunity and were
unavailable for judicial attachment.
We would hope that any final legislation would address this
issue and allow U.S. victims of terrorism to obtain justice
from terrorist supporting nations.
V. The Legislation Does Not Provide Law Enforcement with the Resources
and Tools It Needs To Meaningfully Combat Terrorism
Two of the most important keys to winning the war against
terrorism include providing sufficient funding and resources to
law enforcement officials so that they can adequately protect
the homeland and closing current loopholes in existing law
which make it easier for would-be terrorists to gain access to
dangerous weaponry and materials. Regrettably, H.R. 3199 does
absolutely nothing to address either of these important issues.
A. PREVENTING TERRORISTS FROM BUYING GUNS
America's gun laws are wide open compared to the rest of
the developed world. Foreign groups promoting various forms of
armed conflict, including ``jihad'' have advised would-be
warriors that, because of its lax gun laws, the United States
is the ideal place to get guns and firearms training to prepare
for armed conflict.
The overseas groups understand that, with little more than
a credit card and a driver's license, terrorists can outfit
themselves with military grade firepower--including .50-caliber
sniper rifles, assault weapons, and exotic ammunition.
While they are not ``weapons of mass destruction,'' any gun
in the hand of a terrorist is a danger to Americans. But,
shockingly, our current gun laws have an alarming loophole that
allows suspected and actual members of terrorist organizations
to legally purchase guns.
In fact, according to a recently released GAO report \116\,
over the course of a nine-month span last year, a total of
fifty-six (56) firearm purchase attempts were made by
individuals designated as known or suspected terrorists by the
federal government.
---------------------------------------------------------------------------
\116\ G.A.O. Rep. No. 05-127, at 3 (2005).
---------------------------------------------------------------------------
In forty-seven (47) of those cases, state and federal
authorities were forced to permit such transactions to proceed
because officials were unable to find any disqualifying
information (such as a prior felony conviction or court-
determined `mental defect') in the individual applicant's
background.
To address this problem, during the course of the
Committee's consideration of H.R. 3199, Mr. Conyers and Mr. Van
Hollen offered an amendment to make the transfer of a firearm
to someone the person knows is on the Justice Department's
Violent Gang and Terrorist Organization File (a.k.a. the
``terrorist watch list'') fall under the prohibition of
providing ``material support'' to terrorists. As the name
implies, this is a list of known violent gang and terrorist
organization members. It seems apparent that if the U.S. is
willing to wage war in order to keep WMDs out of the hands of
possible terrorists, the U.S. should keep domestic guns out of
the hands of terrorists in the United States.
Unfortunately, this amendment failed by a vote of 15-22.
Shockingly, a number of Republicans stated they opposed the
amendment because it would harm the Second Amendment rights of
known terrorists. While they are perfectly willing to intrude
on Americans' free speech rights, search their houses without
warrants and without cause, and to lock people up indefinitely
without charging them of any crime, these same Members argued
that a terrorist's right to bear arms was more important than
trying to stop terrorists from buying guns and potentially
using them for another deadly attack on the United States.
B. PREVENTING THE SALE AND MANUFACTURE OF .50-CALIBER GUNS
While current law does regulate the transfer of certain
firearms including machine guns, it does not regulate the sale
of .50-caliber sniper rifles which are advertised by their
manufacturers as capable of shooting down aircraft. These
weapons are important for military use, but are currently also
available for purchase by the general public, including
terrorists. We know that in the 1980s Essam Al-Ridi purchased
.50-caliber rifles in Texas and then shipped them to Osama bin
Laden. Similarly, in 1989, a gunrunner named Florin Krasniqi
came to the U.S. to purchase .50-caliber rifles and
subsequently shipped them to the Kosovo Liberation Army.
Capable of inflicting a devastatingly accurate impact from
well over a mile away, the U.S. Army handbook on urban combat
states that .50-caliber sniper rifles are intended for use as
anti-materiel weapons, designed to attack bulk fuel tanks and
other high-value targets from a distance, using ``their ability
to shoot through all but the heaviest shielding material.''
These weapons are a serious threat for use against civil
aviation, hazardous cargo transport vehicles and rail cars
carrying hazardous materials such as chlorine gas. And needless
to say, their ability to emit powerful projectiles accurately
over long distances make .50-caliber rifles a favorite weapon
of war lords, drug cartels and terrorists due to its
unparalleled potential for damage.
During the course of the Committee's consideration of H.R.
3199, Ms. Lofgren introduced an amendment which would have made
it a crime under the material support provision of the Patriot
Act to transfer a .50-caliber sniper rifle to any person the
transferor knows to be a member of Al Qaeda. Obviously, such an
amendment would provide an important mechanism to help keep
dangerous, high-powered weapons out of the hands of known
terrorists. However, once again, the Republicans voted down
this necessary and commonsense measure to help protect the
United States from harm.
C. REGULATING THE SALE OF SMOKELESS AND BLACK POWDER
Alarmed by a manifesto issued by confessed Olympic bomber
Eric Rudolph justifying violence to stop abortions, the federal
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is
now urging clinics to evaluate and enhance their security. Yet
while the ATF warns potential targets of this threat,
supporters of H.R. 3199 refuse to do anything through this
legislation to stop the virtually unregulated sale of the two
substances most commonly used in improvised explosive devices
in the United States--smokeless powder and black powder.
Smokeless powder--Rudolph's weapon of choice in the Olympic
Park bombing--is used by people who like to ``reload'' their
own ammunition. Black powder is used in muzzle-loading guns for
hunting and historical re-enactments. Because smokeless powder
qualifies as ``small arms ammunition and components thereof, it
is exempt from the federal law regulating the manufacture and
sale of explosives.
Commercially manufactured black powder in quantities of
less than 50 pounds is also exempt. Rudolph reportedly bought
the smokeless powder he packed into the Olympic Park bomb from
a Tennessee gun dealer, one of approximately 60,000 federally
licensed firearms dealers (FFLs) in America.
After the September 11th attacks, ATF became concerned that
other terrorists would utilize the explosives loophole
exploited by Rudolph. The agency started a campaign urging FFLs
to ``Be Aware for America,'' and in a July 2004 letter ATF
reminded dealers, ``Some of the products you may carry in your
inventory, such as black powder and smokeless powder, could be
used in acts of violence. While smokeless powder and black
powder generally are exempt from the Federal explosives laws,
these products are often used to make illegal or `improvised
explosives devices' and pipe bombs.''
Unfortunately, thanks to the powerful gun lobby, for now
this mild entreaty to gun dealers appears to be the full extent
of the federal government's efforts to prevent terrorists from
getting smokeless or black powder.
D. INCREASING GRANTS TO FIRST RESPONDERS
Another problem in the war on terror is that the United
States has no sufficient allocated money to keep our country
safe. Local and state law enforcement officers have been laid
off, schools are getting more dangerous by the second, and not
enough persons have been hired to perform intelligence,
terrorism and homeland security duties.
In local communities across the United States, the first
line of defense against terrorists and other violent crime is
the local police department. More police on the streets could
be useful in thwarting potential terrorist attacks and also
protecting the community from the more conventional violent
criminals and violent crimes.
During the 1990s, the Clinton Administration implemented
the Office of Community Oriented Policing Services (COPS). The
goal of the program was to put 100,000 new police officers on
the streets of America's communities. A new GAO Report
indicates that the COPS program did cause the level of violent
crimes in America to decline. During the time that agencies
were spending COPS funds, violent crime declined.\117\ For
example, between 1994 and 2001, the number of violent crimes
declined from about 1.9 million to about 1.4 million (or about
23 percent), and the violent crime rate per 100,000 population
declined from 714 to 504 (or about 29 percent).\118\
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\117\ G.A.O. Rep. No. 05-699 at 2 (2005).
\118\ Ibid.
---------------------------------------------------------------------------
Mr. Weiner and Ms. Sanchez therefore offered an amendment
to expand the grants available for such measures. Their
amendment would increase funding for first responders in state
and local communities, provide for retention funds to keep law
enforcement in depressed areas, and increase funding for school
security as well as intelligence, terrorism, and homeland
security programs. Unfortunately, the Republicans derailed this
amendment by raising a point of order on the grounds of
germaneness.
E. SECURING OUR NATION'S PORTS
The ``soft underbelly'' of our national security defensive
against terrorism is the security of our nation's ports. This
fact has been repeated in numerous studies and even cited in
the documentary Fahrenheit 911 by Michael Moore. According to a
report in the New York Times, an audit on spending for port
security shows ``far too little money appropriated; much of the
appropriated money not spent; and much of the money that was
spent going for the wrong things.'' \119\ Just recently, the
United States Coast Guard estimated that scanning equipment for
the six million shipping containers that enter the United
States every year would cost $5.4 billion over the next 10
years; however, federal port security grant programs have only
allocated less than $600 million since 2002.\120\
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\119\ Follow the Port Security Money, N.Y. Times, February 28,
2005.
\120\ Ibid.
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It is only a matter of time before terrorists will exploit
this weakness and possibly transport biological/chemical
weapons and/or weapons of mass destruction into the United
States using cargo containers. In 2002, terrorists had an 82.5
percent chance of doing this completely undetected. This is an
unacceptable risk to the American government and people.
F. ELIMINATING TRADE WITH TERRORIST COUNTRIES
The United States government has successfully targeted
various front organizations in the United States that send
funds to terrorist causes all over the world; however, phoney
Islamiccharities are not the only organizations in the United
States that have done business with countries that sponsor terrorism.
According to a 60 Minutes report, ``there are U.S. companies that are
helping drive the economies of countries like Iran, Syria, and Libya,
all places that have sponsored terrorism.'' \121\ William Thompson, New
York City comptroller, has identified three companies, Halliburton,
Conoco-Phillips, and General Electric, that have invested in these
``rouge countries.'' \122\ Halliburton is the same company that Vice
President Richard Cheney ran from 1995 to 2000, ``during which time
Halliburton Products and Services set up shop in Iran. Today, its sells
about $40 million a year worth of oil field services to the Iranian
government.'' \123\ According to Bob Herbert, Halliburton has had a
``history of ripping off the government'' and made ``zillions doing
business in countries that sponsor terrorism, including members of the
`axis of evil' that is so despised by this president.'' \124\
---------------------------------------------------------------------------
\121\ Doing Business with the Enemy, 60 Minutes (2004), at http://
www.cbsnews.com/stories/2004/01/22/60minutes/main595214.shtml.
\122\ Ibid.
\123\ Ibid.
\124\ Bob Herbert, Dancing with the Devil, N.Y. Times, May 22,
2003.
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Currently, United States law prohibits U.S. companies from
doing business with nations that sponsor terrorism.\125\
However, some U.S. companies have found a loophole in the law
and are ``deliberately bypassing U.S. sanction laws by the use
of the `foreign subsidiary' loophole, thereby providing
terrorist states with more revenue to finance terrorist
operations.'' \126\ U.S. Congressman Henry Waxman found that
Halliburton in particular has circumvented the law by setting
up subsidiaries in places such as the Cayman Islands.\127\
---------------------------------------------------------------------------
\125\ International Emergency Economic Powers Act, Sec. 35, 50
U.S.C. Sec. 1701 (2003).
\126\ Lautenberg to Offer Amendment to the FSC-ETI Bill, Sen.
Lautenberg's Website (2004), at http://lautenberg.senate.gov/
lautenberg/press/2003/01/2004422BO8.html.
\127\ Herbert, supra note 4.
---------------------------------------------------------------------------
In a effort to close the loophole, U.S. Senator Frank
Lautenberg offered S.A. 3151, an amendment to the International
Emergency Economic Powers Act, that redefined corporate
entities subject to U.S. sanction law to include ``not only
U.S. companies and all foreign branches, but also foreign
subsidiaries controlled over 50 percent by their parent
American company.'' \128\ This amendment would have stopped
companies like Halliburton who have subsidiary companies that
conduct business with countries like Iran and Lybia. The
amendment was defeated in the U.S. Senate by one vote in 2004.
---------------------------------------------------------------------------
\128\ Lautenberg to Offer Amendment to the FSC-ETI Bill, supra note
6.
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G. PENALIZING THOSE WHO LEAK CLASSIFIED INFORMATION
This Administration and the Republican majority in Congress
have continually accused Democratic Members of Congress, as
well as many American citizens, of ``aiding the terrorists'' by
speaking out against actions and policies that appear extreme
and unnecessary. However, these same individuals have remained
silent when it has been discovered that members of the
Administration and others have knowingly leaked classified
information that identifies covert operatives and literally put
their lives at risk.
Current U.S. law concerning such leaks is insufficient to
protect those who put their lives at risk every day for this
country. Many have noted that it is difficult to meet the
requirements necessary to be found in violation of this law. As
a result, Mr. Wexler offered an amendment to fix this problem.
The Wexler amendment would penalize anyone who reveals any
information that might identify an intelligence officer or
source and put their lives in danger. However, the Republicans
defeated this amendment by voice vote.
H. IMPROVING THE TERRORIST WATCH LIST
Finally, there is true need for an accurate and up-to-date
Terrorist Watch List such that it can be effectively used to
identify and catch suspected and known terrorists. To this end,
it is important to ensure that the list does not misidentify
people and therefore divert needed resources away from catching
the true terrorists.
Mr. Van Hollen introduced an amendment which would require
the Inspector General to report to Congress on the progress of
the Terrorist Screening Center in developing procedures by
which to remove misidentified names from the Terrorist Watch
List. This amendment is important on two fronts: (1) it will
ensure that resources are not spent tracking the wrong people,
and (2) it will protect Americans and other persons who are
mistakenly identified as terrorists by providing a mechanism
for them to clear their name. The much publicized case of
Senator Edward Kennedy spending many hours to clear his name
from this list highlights the problem confronting ordinary
citizens. And, our counterterrorism officers need to be assured
that they can focus on stopping those who truly intend to do
harm to the United States. This amendment was rejected by the
majority.
Considering that the majority often suggests we are in a
perpetual war against terrorists, including terrorists who wish
to attack the United States, we are disappointed that they
flatly rejected amendments which would directly help the United
States fight terrorists and prevent terrorism. That all of
these reasonable measures to enure our safety were rejected
contributed to our collective decision not to support this
bill.
VI. Description of Amendments Offered by Democratic Members
During the mark-up thirty-nine (39) amendments were offered
by Democratic members. The following section provides a brief
description of each of these amendments:
1. Nadler Amendment--Description of Amendment: The
amendment would amend section 215 of the PATRIOT Act to allow
for recipients to challenge the orders, and to allow recipients
to petition to set aside the non-disclosure requirement. It
would also limit Section 215 order to those certified as
``agents of a foreign power.''
Vote on Amendment: The amendment was defeated by a vote of
23-12. Ayes: Representatives Conyers, Berman, Boucher, Nadler,
Scott, Watt, Waters, Delahunt, Weiner, Sanchez, Van Hollen,
Wasserman Schultz, Nays: Representatives Sensenbrenner, Hyde,
Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Cannon,
Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes,
King, Feeney, Franks, Gohmert, Lofgren, Schiff.
2. Scott Amendment--Description of Amendment: The amendment
dealt with the limitation on authority to delay notice of
search warrants. This amendment would strike ``reasonable
period'' from section 3103a of Title 18, U.S.C. and replace
with ``seven calender days'' and applications thereafter to be
extended by the court for an additional 30 calender days for
good cause shown to the court.
Vote on Amendment: The amendment was withdrawn.
3. Waters Amendment--Description of Amendment: The
amendment stated that national security letters would not be
issued to a health insurance company.
Vote on Amendment: The amendment was defeated by a vote of
23-14. Ayes: Representatives Conyers, Berman, Boucher, Nadler,
Scott, Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff,
Sanchez, Van Hollen, Nays: Representatives Sensenbrenner, Hyde,
Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins,
Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence,
Forbes, King, Feeney, Franks, Gohmert, Wasserman Schultz.
4. Scott Amendment--Description of Amendment: The amendment
is a second degree amendment to the Lungren Amendment. The
Lungren Amendment sunsetted Sections 206 and 215 of the PATRIOT
Act in 2015. The Scott Amendment would sunset these provisions
in 2009.
Vote on Amendment: The amendment was defeated by a party
line vote of 21-15. Ayes: Representatives Conyers, Berman,
Nadler, Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler,
Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz, Nays:
Representatives Sensenbrenner, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis,
Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King,
Feeney, Franks, Gohmert.
5. Nadler Amendment--Description of Amendment: This a
second degree amendment to the Lungren amendment. It would
sunset Sections 206 and 215 in 2011.
Vote on Amendment: The amendment was defeated on a party
line vote of 9-18. Ayes: Representatives Conyers, Nadler,
Scott, Watt, Meehan, Delahunt, Schiff, Sanchez, Nays:
Representatives Sensenbrenner, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis,
Hostettler, Green, Issa, Forbes, King, Feeney, Gohmert.
6. Nadler and Lofgren Amendment--Description of Amendment:
This amendment would sunset the remaining 14 expiring
provisions in 2015.
Vote on Amendment: The amendment was defeated on a party
line vote of 12-21. Ayes: Representatives Conyers, Berman,
Boucher, Nadler, Scott, Lofgren, Meehan, Delahunt, Weiner,
Schiff, Sanchez, Van Hollen; Nays: Representatives
Sensenbrenner, Hyde, Coble, Smith, Gallegly, Chabot, Lungren,
Jenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa,
Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.
7. Van Hollen and Conyers Amendment--Description of
Amendment: This amendment would close the gun buying loophole
by prohibiting the knowing sale of firearms to persons on the
Violent Gang and Terrorist Organization File.
Vote on Amendment: The Amendment was defeated by 15-22.
Ayes: Representatives Conyers, Berman, Nadler, Scott, Lofgren,
Waters, Meehan, Delahunt, Wexler, Weiner, Schiff, Sanchez, Van
Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner,
Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren,
Jenkins, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence,
Forbes, King, Feeney, Franks, Gohmert, Boucher.
8. Berman and Delahunt Amendment--Description of Amendment:
This amendment would require a report on the use of data-mining
technology and procedures, as well as measures to protect
privacy with the use of data-mining.
Vote on Amendment: The amendment was withdrawn.
9. Schiff and Waters Amendment--Description of Amendment:
This amendment would allow only the FBI Director to obtain
medical records, and records from libraries and bookstores
under Section 215 of the PATRIOT Act.
Vote on Amendment: The amendment was withdrawn.
10. Wexler Amendment--Description of Amendment: This
amendment adds the revealing of information about the identity
of a covert operative to the list of predicate offenses for
providing material support for terrorism.
Vote on Amendment: The amendment was withdrawn.
11. Schiff Amendment--Description of Amendment: This
amendment would add to the list of activities which, if done
willfully, will result in violating the statute which prohibits
the planning of terrorist attacks on mass transportation (18
USC 1993(a)(3)).
Vote on Amendment: The amendment was agreed to by voice
vote.
12. Lofgren Amendment--Description of Amendment: This
amendment would prohibit the sale of .50-caliber sniper rifles
to a person known to be a member of Al Qaeda.
Vote on Amendment: This Amendment failed on a party line
vote of 13-22. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Waters, Wexler, Weiner, Schiff, Sanchez,
Van Hollen, Wasserman Schultz; Nays: Representatives
Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot,
Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller,
Issa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.
13. Weiner and Sanchez Amendment--Description of Amendment:
This Amendment would increase grants to first responders, as
well as grants for school security and retention grants for
local law enforcement.
Vote on Amendment: This amendment was ruled non-germane.
14. Lofgren Amendment--Description of Amendment: This
amendment would require the Inspector General of the Department
of Justice to review the detentions of persons under the
material witness statute (18 USC 3144) in its reports required
by Section 1001 of the PATRIOT Act.
Vote on Amendment: This amendment was agreed to
unanimously, on a vote of 34-0.
15. Schiff Amendment--Description of Amendment: This
amendment would amend section 105(c) of the Foreign
Intelligence Surveillance Act (Section 206 of the PATRIOT Act)
to require that where the identity of the target of
surveillance is not known, a specific description is provided
of the target.
Vote on Amendment: This amendment failed on a party line
vote of 15-22. Ayes: Representatives Conyers, Berman, Boucher,
Nadler, Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler,
Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays:
Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon,Inglis, Hostettler,
Green, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks,
Gohmert.
16. Nadler and Jackson Lee Amendment--Description of
Amendment: This amendment would amend Section 206 of the
PATRIOT Act to make FISA wiretaps like criminal wiretaps in
that the FBI must choose between obtaining either a roving
wiretap or a ``John Doe'' wiretap.
Vote on Amendment: The Amendment was withdrawn.
17. Watt Amendment--Description of Amendment: This
amendment allows targets of nationwide search warrants to
challenge them in the district where the warrant is served.
Vote on Amendment: This amendment was defeated by a vote of
14-24: Ayes: Representatives Conyers, Berman, Boucher, Nadler,
Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, Weiner,
Sanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde,
Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins,
Cannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence,
Forbes, King, Feeney, Franks, Gohmert, Schiff, Wasserman
Schultz.
18. Schiff Amendment--Description of Amendment: This
amendment (a) adds to the list of predicate offenses which are
considered ``federal crimes of terrorism''; (b) allows for the
forfeiture of property involved in the trafficking of weapons
of mass destruction; and (c) adds numerous crimes related to
terrorism to the list of offenses for which oral and wire
communications may be intercepted under 18 U.S.C. 2516.
Vote on Amendment: This amendment was agreed to by voice
vote.
19. Lofgren Amendment--Description of Amendment: This
amendment would ensure that no law passed after 9/11, including
the PATRIOT Act, would suspend the writ of habeas corpus.
Vote on Amendment: This amendment was initially agreed to
by voice vote. There was then a successful vote in favor of
reconsidering the amendment. The amendment then was defeated on
a party line vote of 14-23. Ayes: Representatives Conyers,
Berman, Boucher, Nadler, Scott, Watt, Lofgren, Delahunt,
Wexler, Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz;
Nays: Representatives Sensenbrenner, Hyde, Coble, Smith,
Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus,
Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes,
King, Feeney, Franks, Gohmert.
20. Schiff Amendment--Description of Amendment: This
amendment would eliminate the nondisclosure requirement of a
Foreign Intelligence Surveillance Court order for business
records from a library, bookstore, or for medical records, when
an individual is a citizen of the United States, at the
conclusion of investigation.
Vote on Amendment: The amendment failed by a recorded vote
of 13 yeas and 20 nays. Ayes: Representatives Conyers, Berman,
Boucher, Scott, Waters, Delahunt, Wexler, Weiner, Schiff,
Sanchez, Van Hollen, Wasserman Schultz, Goodlatte; Nays:
Representatives Sensenbrenner, Coble, Smith, Gallegly, Chabot,
Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green,
Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks.
21. Wexler Amendment--Description of Amendment: This
amendment would add to Section 805 on Material Support for
Terrorism in the PATRIOT Act the act of revealing identifying
information about a U.S. covert operative.
Vote on Amendment: This amendment failed on a voice vote.
22. Schiff Amendment--Description of Amendment: This
amendment would obligate all funds authorized for the Victims
of Crime Fund, through the Victims of Crime Act of 1984, to be
used.
Vote on Amendment: This amendment was ruled non-germane.
23. Watt and Waters Amendment--Description of Amendment:
This amendment would strike section 8(c) of H.R. 3199 to
eliminate the nondisclosure requirement of a Foreign
Intelligence Surveillance Act Court order for business records
in a national security case unless law enforcement in an
``application for such an order provides specific and
articulable facts giving the applicant reason to believe that
disclosure would result'' in adverse affects specified in the
amendment.
Vote on Amendment: This amendment failed on a vote of 13-
23. Ayes: Representatives Conyers, Berman, Nadler, Scott, Watt,
Lofgren, Waters, Delahunt, Wexler, Weiner, Sanchez, Van Hollen,
Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde,
Coble, Smith, Gallegly, Goodlatte, Lungren, Jenkins, Cannon,
Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence,
Forbes, King, Feeney, Franks, Gohmert, Schiff.
24. Scott Amendment--Description of Amendment: This
amendment would entitle a person who prevails on a challenge of
the legality of a section 215 order to reasonable attorneys
fees, if any, incurred by the person in pursuing the challenge.
Vote on Amendment: The amendment failed by a party line
vote of 14-22. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff,
Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives
Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte,
Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green,
Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks,
Gohmert.
25. Schiff Amendment--Description of Amendment: This
amendment would sunset Section 6001 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (``lone wolf'') in 2008.
Vote on Amendment: This amendment failed on a party line
vote 14-22. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Weiner,
Sanchez, Van Hollen, Wasserman Schultz; Nays: Representatives
Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte,
Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green,
Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks,
Gohmert.
26. Nadler, Jackson Lee and Waters Amendment--Description
of Amendment: This amendment would limit the length of delays
for delayed notification search warrants under Section 213 of
the PATRIOT Act. Delays would be limited to 30 days, with
extensions of up to 60 days.
Vote on Amendment: This Amendment was withdrawn.
27. Jackson Lee Amendment--Description of Amendment: This
amendment would amend Section 218 of the PATRIOT Act to provide
that notice be given to the target of a search if the target is
a U.S. person who is found not to be an agent of a foreign
power.
Vote on Amendment: This amendment failed on a party line
vote of 10-23. Ayes: Representatives Conyers, Nadler, Scott,
Watt, Jackson Lee, Waters, Weiner, Sanchez, Van Hollen,
Wasserman Schultz; Nays: Representatives Sensenbrenner, Hyde,
Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins,
Cannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake,
Pence, Forbes, King, Feeney, Franks, Gohmert.
28. Flake and Nadler Amendment--Description of Amendment:
This amendment would amend Section 213 of the PATRIOT Act to
provide that delays in notification can last for 180 days, with
extensions of up to 90 days.
Vote on Amendment: This amendment was agreed to by voice
vote.
29. Conyers Amendment--Description of Amendment: This
amendment would (a) treat electronic communications
interception like wire and oral communications under 18 US
2515; (b) require a report on the disclosure of contents of
electronic communications by the A.C. to the Congress; and (c)
increase to $10,000 the amount recoverable under 18 USC
2707(c).
Vote on Amendment: This amendment was defeated on a party
line vote of 14-23. Ayes: Representatives Conyers, Berman,
Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt,
Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays:
Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis,
Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King,
Feeney, Franks, Gohmert
30. Nadler Amendment--Description of Amendment: This
amendment would authorize disclosure of a National Security
Letter to ``qualified persons,'' including one's attorney. It
also provides that the non-disclosure period will last 180
days, with extensions of up to 90 days, if the government
proves disclosure would result in a clear harm.
Vote on Amendment: This amendment was defeated 14-23. Ayes:
Representatives Conyers, Berman, Nadler, Scott, Watt, Lofgren,
Jackson Lee, Waters, Delahunt, Weiner, Schiff, Sanchez, Van
Hollen, Wasserman Schultz; Nays: Representatives Sensenbrenner,
Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren,
Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller,
Issa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.
31. Schiff Amendment--Description of Amendment: This
amendment would grant citizenship to alien spouses and children
of certain victims of the 9/11 attacks.
Vote on Amendment: This amendment was ruled non-germane.
32. Scott Amendment--Description of Amendment: This
amendment amend section 105(c) of the Foreign Intelligence
Surveillance Act to require surveillance may be directed at a
place or facility only for such time as the applicant believes
that such facility or place is being used, or about to be used
by the target of the surveillance.
Vote on Amendment: The amendment failed by a party line
vote of 13 yeas to 23 nays. Ayes: Representatives Conyers,
Berman, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters,
Delahunt, Weiner, Sanchez, Van Hollen, Wasserman Schultz; Nays:
Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis,
Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King,
Feeney, Franks, Gohmert.
33. Schiff Amendment--Description of Amendment: This
amendment would require a report on the use of National
Security Letters (Section 505 of the PATRIOT Act) by the
Attorney General for the preceding year.
Vote on Amendment: This amendment failed by a party line
vote of 15-21. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler,
Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays:
Representatives Sensenbrenner, Hyde, Coble, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis,
Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King,
Feeney, Franks.
34. Jackson Lee Amendment--Description of Amendment: This
amendment would prohibit medical records from being obtained
with a Section 215 order.
Vote on Amendment: This amendment failed by a vote of 12-
24. Ayes: Representatives Conyers, Nadler, Scott, Watt,
Lofgren, Jackson Lee, Waters, Delahunt, Wexler, Weiner,
Sanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde,
Coble, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon,
Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence,
Forbes, King, Feeney, Franks, Gohmert, Schiff, Wasserman
Schultz.
35. Van Hollen Amendment--Description of Amendment: This
amendment requires a report by the DOJ Inspector General on
procedures and guidelines to ensure the accuracy of the
Terrorist Watch List, including how to remove misidentified
persons.
Vote on Amendment: This amendment failed on a party line
vote of 15-23. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Jackson Lee, Meehan, Delahunt, Wexler,
Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays:
Representatives Sensenbrenner, Hyde, Coble, Smith, Gallegly,
Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis,
Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, King,
Feeney, Franks, Gohmert.
36. Nadler Amendment--Description of Amendment: This
amendment allows for the recipient of a National Security
Letter to disclose receipt of the Letter to a ``qualified
person,'' including one's attorney.
Vote on Amendment: This Amendment failed on a party line
vote 16-23. Ayes: Representatives Conyers, Berman, Nadler,
Scott, Watt, Lofgren, Jackson Lee, Waters, Meehan, Delahunt,
Wexler, Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz;
Nays: Representatives Sensenbrenner, Hyde, Coble, Smith,
Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus,
Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes,
King, Feeney, Franks, Gohmert.
37. Scott Amendment--Description of Amendment: This
amendment would exempt humanitarian support such as medical
services, food and water from the prohibition on providing
Material Support to Terrorists (Section 805 of the PATRIOT
Act).
Vote on Amendment: This amendment failed on a vote of 7-31.
Ayes: Representatives Conyers, Scott, Watt, Jackson Lee,
Waters, Meehan, Delahunt; Nays: Representatives Sensenbrenner,
Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren,
Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller,
Issa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert,
Berman, Nadler, Wexler, Weiner, Schiff, Sanchez, Van Hollen,
Wasserman Schultz.
38. Jackson Lee Amendment--Description of Amendment: This
amendment would require a report by the Inspector General of
DOJ under Section 1001 of the PATRIOT Act on any authorities
used that go beyond the Attorney General Guidelines written in
1989, such as racial profiling.
Vote on Amendment: This amendment failed on a vote of 13-
25. Ayes: Representatives Conyers, Nadler, Scott, Watt,
Lofgren, Jackson Lee, Waters, Meehan, Wexler, Weiner, Sanchez,
Van Hollen, Wasserman Schultz; Nays: Representatives
Sensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot,
Lungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green,
Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks,
Gohmert, Berman, Delahunt.
39. Nadler and Scott Amendment--Description of Amendment:
This amendment amends the National Security Letter statutes to
allow recipients to challenge them in court. It also requires
pen register and trap-and-trace orders under Section 214 to be
limited to terrorism or espionage investigations.
Vote on Amendment: This amendment was defeated on a voice
vote.
VII. Conclusion
There is no more difficult task we have as legislators than
balancing our nation's need for security against our citizens'
civil liberties. By passing this bill which largely ignores the
most serious abuses of the PATRIOT Act, ignores the unilateral
misuse of power by the Administration, and fails to provide
adequate resources and funding to those on the ``front line''
in the fight against terrorism, we believe we will be failing
in our task.
If we are serious about combating terror in the 21st
century, we must move beyond symbolic gestures and begin to
make the hard choices needed to protect our nation.
Unfortunately, this legislation does not make those choices.
The lessons of September 11 are that if we allow law
enforcement to do their work free of political interference, if
we give them adequate resources and modern technologies, we can
protect our citizens without intruding on their liberties.
The bill before us today does not meet this test. It is our
hope that we can come together on the House Floor and in
conference and craft a bill that fights terrorism the right
way, consistent with our constitution and our values, and in a
manner that serves as a model for the rest of the world. For
all of the aforementioned reasons, we respectfully dissent.
Appendix A, Section-By-Section Summary of the USA PATRIOT Act of 2001,
H.R. 3162
TITLE I: ENHANCING DOMESTIC SECURITY
Section 101: Counterterrorism fund--Establishes a
counterterrorism fund to rebuild any Justice Department
component that has been damaged or destroyed as a result of a
terrorism incident; provide support for investigations and to
pay terrorism-related rewards; and conduct terrorism threat
assessments.
Section 102: Sense of Congress condemning discrimination
against Arab and Muslim Americans.
Section 103: Increased funding for the FBI's technical
support center--Authorizes $200 million for each of FY 2002,
2003, and 2004 for the technical support center.
Section 104: Requests for military assistance to enforce
prohibition in certain emergencies--Allows military to assist
state and local law enforcement with domestic chemical weapons
emergencies.
Section 105: Expansion of National Electronic Crime Task
Force Initiative--Directs the Secret Service to develop a
national network with electronic crime task forces based on the
New York Electronic Crime Task Force model.
Section 106: Presidential Authority--Expands International
Economic Emergency Powers Act to allow the President to
confiscate and vest properties of an enemy when United States
is engaged in military hostilities or has been subject to an
attack by that enemy. It allows classified information, used to
make a determination regarding national security or terrorism
cases, to be submitted and in camera to the reviewing court of
such determinations.
TITLE II: ENHANCED SURVEILLANCE PROCEDURES
Section 201: Authority to Intercept Wire, Oral, and
Electronic Communications Relating to Terrorism--Adds terrorism
offenses to the list of predicates for obtaining title III
wiretaps.
Section 202: Authority to Intercept Wire, Oral, and
Electronic Communications Relating to Computer Fraud and Abuse
Offenses--Adds computer fraud and abuse offenses to the list of
predicates for obtaining title III wiretaps.
Section 203: Authority to Share Criminal Investigative
Information--Allows intelligence information obtained in grand
jury proceedings to be shared with any law enforcement,
intelligence, immigration, or national security personnel as
long as notice is given to the court after the disclosure.
Recipient can only use information in conduct of their duties
subject to disclosure limitations in current law. Intelligence
information obtained from wiretaps can be shared with law
enforcement, intelligence, immigration, or national security
personnel. Recipients can use the information only in the
conduct of their duties and are subject to the limitations in
current law of unauthorized disclosure of wiretap information.
Attorney General must establish procedures for the release of
this information in the case of a U.S. person. Intelligence
information obtained in intelligence operations can be
disclosed to intelligence personnel in performance of their
duties.
Section 204: Clarification of Intelligence Exceptions from
Limitations on Interception and Disclosure of Wire, Oral, and
Electronic Communications--Explicitly carves out foreign
intelligence surveillance operations from the protections of
ECPA.
Section 205: Employment of Translators by the FBI--
Authorizes the FBI to expedite employment of translators.
Section 206: Roving Surveillance Authority under FISA--
Expands FISA court orders to allow ``roving'' surveillance in
manner similar to Title III wiretaps.
Section 207: Duration of FISA Surveillance of Non-United
States Persons who are Agents of a Foreign Power--Currently,
the duration for a FISA surveillance may initially be ordered
for no longer than 90 days but later can be extended to one
year. This section changes the initial period for electronic
surveillance from 90 to 120 days and extensions from 90 days to
one year; and for searches from 45 to 90 days.
Section 208: Designation of Judges--Increases number of
FISA judges from 7 to 11 and requires that at least 3 judges
reside within 20 miles of the District of Columbia.
Section 209: Seizure of Voice Mail Pursuant to Warrants--
Provides that voice mails can be accessed by the government
with a court order in the same way e-mails currently can be
accessed and authorizes nationwide service with a single search
warrant for voice mails.
Section 210: Scope of Subpoenas for Records of Electronic
Communications--Broadens the types of records that law
enforcement can subpoena from electronic communications service
providers by requiring providers to disclose the means and
source of payment, including any bank account or credit card
numbers, pursuant to a subpoena.
Section 211: Clarification of Scope--Broadens the scope of
the subscriber records disclosure statutes to treat cable
companies that provide Internet service the same as other
Internet Service Providers and telephone companies.
Section 212: Emergency Disclosure of Electronic
Communications--Permits Internet Service Providers to disclose
voluntarily stored electronic communications of subscribers in
the event immediate danger or death or serious bodily injury to
a person requires such disclosure. Also otherwise allows law
enforcement to compel disclosure to third parties using a court
order or a search warrant.
Section 213: Authority for Delaying Notice of Execution of
a Warrant--Broadens authority of law enforcement to delay
notification of search warrants in criminal investigation if
prior notification would have an adverse result and if
notification is given a reasonable period after the search.
Based on codification of Second Circuit decision.
Section 214: Pen Register and Trap and Trace Authority
under FISA--Currently, when the Attorney General or a
designated attorney for the government applies for a pen
register or trap and trace device under FISA, the application
must include a certification by the applicant that (1) the
information obtained would be relevant to an on-going
intelligence investigation, and (2) the information
demonstrates that the phone covered was used in communication
with someone involved in terrorism or intelligence activities
that may violate U.S. criminal law or with a foreign power or
its agent whose communication is believed to concern terrorism
or intelligence activities that could violate U.S. criminal
laws. The conference report deletes second prong, but limits
the use of these tools to protection against international
terrorism or clandestine intelligence activities and provide
that the use of these tools may not be based solely on First
Amendment activities.
Section 215: Access to Records and Other Items under FISA--
(1) requires a FISA court order to obtain business records; (2)
limits the use of this authority to investigations to protect
against international terrorism or clandestine intelligence
activities; and (3) provides that investigations of U.S.
persons may not be based solely on First Amendment activities.
Section 216: Authorities Relating to the Use of Pen
Register and Trap and Trace Devices--Extends the pen/trap
provisions so they apply not just to telephone communications
but also to Internet traffic, so long as they exclude
``content.'' Excludes ISP's from liability, gives Federal
courts the authority to grant orders that are valid anywhere in
the United States instead of just their own jurisdictions, and
provides for a report to Congress on this ``Carnivore'' device.
Section 217: Interception of Computer Trespasser
Communications--Allows persons ``acting under color of law'' to
intercept communications if the owner of a computer authorizes
it, and the person acting under color of law is acting pursuant
to a lawful investigation. Section 815 also excludes service
provider subscribers from definition of trespasser, limits
interception authority to only those communications through the
computer in question.
Section 218: Foreign Intelligence Information--Permits FISA
surveillance and search requests if they are for a
``significant'' intelligence gathering purpose (rather than
``the'' purpose under current law).
Section 219: Single Jurisdiction Search Warrants for
Terrorism--Permits Federal judges to issue search warrants
having nationwide effect for investigations involving
terrorism.
Section 220: Nationwide Service of Search Warrants for
Electronic Evidence--Permits a single court having jurisdiction
over the offense to issue a search warrant for e-mail that
would be valid in anywhere in the United States.
Section 221: Trade Sanctions (IR Committee)--Adds Taliban
to list of entities potentially subject to sanctions and
retains congressional oversight in current law.
Section 222: Assistance to Law Enforcement Agencies--
Prohibits technology mandates on entities to comply with this
Act. Provides for cost reimbursement of entities assisting law
enforcement with title III pen trap orders.
Section 223: Civil Liability for Certain Unauthorized
Disclosures--Increases civil liability for unauthorized
disclosure of pen trap, wiretap, stored communications or FISA
information. Also requires administrative discipline of
officials who engage in such unauthorized disclosures.
Section 224: Sunset--201, 202, 203(b), 204, 206, 207, 209,
212, 214, 215, 217, 218, 220, will sunset in four years--at the
end December 31, 2005. Conference agreement to narrow those
investigations that survive sunset to particular investigations
based on offenses occurring prior to sunset.
Section 225: Immunity for Compliance with FISA Wiretap--
Provides immunity for civil liability from subscribers,
tenants, etc. for entities that comply with FISA wiretap
orders--dropped Administration proposal allowing FBI to use
wiretap information on U.S. citizens it obtained overseas in
violation of the Fourth Amendment.
TITLE III: FINANCIAL INFRASTRUCTURE
Other provisions to be supplied by Financial Services
conference. Provisions below from House Judiciary Committee
bill.
Section 301: Laundering The Proceeds of Terrorism--Expands
the scope of predicate offenses for laundering the proceeds of
terrorism to include ``providing material support or resources
to terrorist organizations,'' as that crime is defined in 18
U.S.C. Sec. 2339B of the criminal code.
Section 302: Extraterritorial Jurisdiction [International
Relations Committee]--Applies the financial crimes prohibitions
to conduct committed abroad in situations where the tools or
proceeds of the offense pass through or are in the United
States.
TITLE IV: PROTECTING THE BORDER
SUBTITLE A--PROTECTING THE NORTHERN BORDER
Section 401: Ensuring Adequate Personnel on the Northern
Border: Authorizes the waiver of any FTE cap on personnel
assigned to the INS to address the national security on the
Northern Border.
Section 402: Northern Border Personnel: Authorizes the
appropriation of funds necessary to triple the number of Border
Patrol, INS and Customs Service personnel in each State along
the northern border. The bill also authorizes $50 million each
to the INS and Customs Services for purposes of making
improvements in technology for monitoring the northern border
and acquiring additional equipment at the northern border.
Section 403: Requiring Sharing by the Federal Bureau of
Investigation of Certain Criminal Record Extracts with Other
Federal Agencies in Order to Enhance Border Security: Requires
the Justice Department and FBI to provide the State Department
and INS information contained in its National Crime Information
Center files to permit INS and State to better determine
whether a visa applicant has a criminal history record.
Section 404: Limited Authority to Pay Overtime: Strikes
certain prohibitions on the paying of overtime to INS
employees.
Section 405: Report on the Integrated Automated Fingerprint
Identification System for Points of Entry and Overseas Consular
Posts: Requires the Justice Department to report to Congress on
the feasibility of enhancing the FBI's Integrated Automated
Fingerprint Identification System and other identification
systems.
SUBTITLE B: ENHANCED IMMIGRATION PROVISIONS
Section 411: Definitions Relating to Terrorism: Broadens
the terrorism ground of inadmissibility to include (a) any
representative of a political or social group that publicly
endorses terrorist activity in the United States, (b) a person
who uses his position of prominence within a country to endorse
terrorist activity or persuade others to support terrorist
activity, (c) the spouses and children of persons engaged in
terrorism, and (d) any other person the Secretary of State or
Attorney General determines has been associated with a
terrorist organization and who intends to engage in activities
that could endanger the welfare, safety, or security of the
United States. This bill broadens the definition of ``terrorist
activity'' to include the use, not only of explosives and
firearms, but other dangerous devices as well. Further, it
broadens the definition of a terrorist ``engaging in a
terrorist activity'' to include anyone who affords material
support to an organization that the individual knows or should
know is a terrorist organization, regardless of whether or not
the purported purpose for the support is related to terrorism.
It also broadens the types of organizations that may be
designated or redesignated as a foreign terrorist organization
by the Secretary of State to comport with definitions of
terrorism found elsewhere in the law.
Section 412: Changes in Designation of Foreign Terrorist
Organizations: Expands the ability of the Attorney General to
mandatorily detain those aliens that he certifies may pose a
threat to national security, pending the outcome of criminal or
removal proceedings.
Section 413: Multilateral Cooperation Against Terrorists:
Enhances the Government's ability to combat terrorism and crime
worldwide by providing new exceptions to the laws regarding
disclosure of information from visa records. The bill grants
the Secretary of State discretion to provide such information
to foreign officials on a case-by-case basis for the purpose of
fighting international terrorism or other crimes. It also
allows the Secretary to provide countries with which he
negotiates specific agreements to have more general access to
information from the State Department's lookout databases where
the country will use such information only to deny visas to
persons seeking to enter its territory.
Section 414: Visa Integrity and Security: Includes a sense
of the Congress that in light of the terrorist attacks, the
Attorney General must expedite the implementation of the
integrated entry and exit data system authorized by Congress in
1996.
Section 415: Participation of Office of Homeland Security
on Entry Task Force: Includes the Office of Homeland Security
in the development and implementation of the integrated entry
and exit data system authorized by Congress in 1996.
Section 416: Foreign Student Monitoring Program: Requires
the Attorney General to fully implement and expand foreign
student monitoring program authorized by Congress in 1996.
Section 417: Machine Readable Passports: Requires the
Secretary of State to perform annual audits and report to
Congress on the implementation of the machine-readable passport
program.
Section 418: Prevention of Consulate Shopping: Requires the
Secretary of State to review how consular officers issue visas
to determine if consular shopping is a problem.
SUBTITLE C: PRESERVATION OF IMMIGRATION BENEFITS FOR VICTIMS OF
TERRORISM
Adds new subtitle (sections 421-428) to the
Administration's proposal to preserve the immigration benefits
of the victims of the September 11th terrorist attacks and
their family members. For some families, spouses and children
may lose their immigration status due to the death or serious
injury of a family member. These family members are facing
deportation because they are out of status: they no longer
qualify for their current immigration status or are no longer
eligible to complete the application process because their
loved one was killed or injured in the September 11 terrorist
attack. Others are threatened with the loss of their
immigration status, through no fault of their own, due to the
disruption of communications andtransportation that has
resulted directly from the terrorist attacks. Because of these
disruptions, people have been and will be unable to meet important
deadlines, which will mean the loss of eligibility for certain benefits
and the inability to maintain lawful status, unless the law is changed.
The bill:
Creates a new special immigrant status for
people who were in the process of securing permanent
residence through a family member who died, was
disabled, or lost employment as a result of the
terrorist activities of September 11, 2001;
Provides a temporary extension of status to
people who are present in the United States on a
``derivative status'' (the spouse or minor child) of a
non-immigrant who was killed or injured on September
11, 2001;
Provides remedies for people who will be
adversely affected or will lose their right to apply
for benefits because of their inability to meet certain
deadlines through no fault of their own and as a result
of the September 11, 2001 terrorist attack (visa
waiver, diversity lottery, advance parole and voluntary
departure);
Provides immigration relief to the widows/
widowers and orphan children of citizens and legal
permanent residents who were killed in the September 11
attacks by allowing applications for permanent resident
status to be adjudicated;
Prevents children from aging out of
eligibility for immigration benefits were the delay the
result of the September 11 attacks;
Provides for temporary administrative relief
to allow the family of people who were killed or
seriously injured in the terrorist attacks who are not
otherwise covered by this subtitle; and
Prohibits any benefits from being provided
to anyone culpable for the terrorist attacks on
September 11 or any family member of such person.
TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM
Section 501: Attorney General's Authority to Pay Rewards--
Ensures non-terrorism rewards are subject to budgetary caps.
Section 502: Secretary of State Rewards (IR Committee)--
Amends the Department of State's reward authority so that
rewards may be offered for the identification or location of
the leaders of a terrorist organization, increases the maximum
amount of an award from $5 million to $10 million, and allows
the Secretary to further increase a reward to up to $25 million
if the Secretary determines that offering the payment of such
additional amount is important to the national interest. Also
provides a sense of Congress that the Secretary should offer a
$25 million award for Osama bin Laden and other leaders of the
September 11th attack. Broadens the AG's authority to offer
rewards without caps for information related to terrorism.
Section 503: DNA Identification of Terrorists--Requires
persons convicted of terrorism offenses also to submit to DNA
samples.
Section 504: Coordination with Law Enforcement--Allows
Federal law enforcement conducting electronic surveillance or
physical searches to consult with other Federal law enforcement
officers to protect against hostile acts, terrorism, or
intelligence activities.
Section 505: Miscellaneous National-Security Authorities--
In counterintelligence investigations, the Director of the FBI
or his designee, not lower than the Deputy Assistant Director,
may request telephone, financial, or credit records of an
individual if he certifies that the information sought is (1)
relevant to an authorized foreign counterintelligence
investigation, and (2) that there are ``specific and
articulable'' facts finding that the person/entity from whom
the information is sought is a foreign power or its agent.
Section 506: Extension of Secret Service Jurisdiction--
Allows Secret Service to coordinate with Justice Department to
investigate offenses against U.S. government computers.
Section 507: Disclosure of Educational Records (Education
and Workforce)--Allows the release of student education records
if it is determined by the Attorney General or Secretary of
Education (or their designee) that doing so could reasonably be
expected to assist in investigating or preventing a federal
terrorism offense or domestic or international terrorism.
Section 508: Disclosure of NC Information--Same as 507, but
covers surveys conducted by the Education Department.
TITLE VI: PROVIDING FOR VICTIMS AND PUBLIC SAFETY OFFICERS SUBTITLE A:
AID TO FAMILIES OF PUBLIC SAFETY OFFICERS
Section 611: Expedited Payment for Public Safety Officers
Involved in the Prevention, Investigation, Rescue, or Recovery
Efforts Related to a Terrorist Attack--Expedites payment of
benefits to victims, their families, and public safety
officers.
Section 612: Technical Correction with Respect to Expedited
Payments for Heroic Public Safety Officers--Makes technical
correction to Nadler bill, which passed into law in mid-
September 2001.
Section 613: Public Safety Officer Benefit Program Payment
Increase.--Increases public safety officer benefits from
$100,000 to $250,000.
Section 614: Office of Justice Programs--Adds to the list
of programs within OJP.
SUBTITLE B: AMENDMENTS TO THE VICTIMS OF CRIME ACT OF 1984
This subtitle makes changes to the administration of--and
authorizes additional funding for--the crime victims fund.
TITLE VII: INCREASED INFORMATION SHARING
This Subtitle expands regional information sharing to
facilitate Federal-state-local law enforcement responses to
terrorism.
TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM
Section 801: Terrorist Attacks and Other Acts of Violence
Against Mass Transportation Systems--Establishes a new Federal
offense for attacking a mass transportation system.
Section 802: Definition of Domestic Terrorism--Creates a
definition for ``domestic terrorism'' for the limited purpose
of providing investigative authorities (i.e., court orders,
warrants, etc.) for acts of terrorism within the territorial
jurisdiction of the United States. Such offenses are those that
are ``(1) dangerous to human life and violate the criminal laws
of the United States or any state; and (2) appear to be
intended (or have the effect)--to intimidate a civilian
population; influence government policy by intimidation or
coercion; or affect government conduct by mass destruction,
assassination, or kidnaping (or a threat of).''
Section 803: Prohibition Against Harboring Terrorists--
Makes it an offense when someone harbors or conceals another
they know or should have known had engaged in or was about to
engage in federal terrorism offenses.
Section 804: Jurisdiction over Crimes Committed at U.S.
Facilities Abroad--Extends the special and maritime criminal
jurisdiction of the United States to offenses committed abroad
by or against U.S. nationals.
Section 805: Material Support for Terrorism--Permits
prosecution under current crime of material support for
terrorism to occur in ``any Federal judicial district in which
the underlying offense was committed, or in any other Federal
judicial district as provided by law,'' and includes the
provision of ``monetary instruments'' as ``material support.''
Section 806: Assets of Terrorist Organizations--Extends
forfeiture and confiscation authority to ``all assets, foreign
or domestic'' that are owned or controlled by ``any person,
entity or organization engaged in planning or perpetuating any
act of domestic terrorism or international terrorism against
the United States, citizens or residents . . . or their
property.''
Section 807: Technical Clarification Relating to Provision
of Material Support to Terrorism--Makes clear that whoever
provides material support or resources to terrorists or foreign
terrorist organizations may be subject to criminal liability
under Sec. 2339A or Sec. 2339B. Moreover, proposed section 407
of the Administration's legislation seemed to gut the
congressional approval requirement and confer upon the
President the independent power to impose agricultural and
medical sanctions on terrorists ``wherever they are located.''
Section 808: Definition of Federal Crime of Terrorism--Adds
new highly egregious offenses to existing definition of
``Federal crime of terrorism,'' thereby ensuring that
``coercing government'' is an element of the offense along with
other predicates. Also, added predicates are narrowed to those
being the most egregious.
Section 809: No Statute of Limitation for Prosecuting
Terrorism Offenses--Provides that terrorism offenses may be
prosecuted without time limitations, however, more focused list
of offenses will continue to carry an 8-year statute of
limitations except where they resulted in, or created a risk
of, death or serious bodily injury.
Section 810: Alternative Maximum Penalties for Terrorism
Crimes--Provides alternative maximum prison terms for terrorism
crimes, including imprisonment for any term of years or for
life.
Section 811: Penalties for Terrorist Conspiracies--Adds a
new section to the terrorism chapter of the criminal code to
provide that the maximum penalties for conspiracies to commit
terrorism are equal to the maximum penalties authorized for the
objects of such conspiracies (similar approach is found in the
criminal code with respect to drug crimes).
Section 812: Post-Release Supervision of Terrorists--
Authorizes longer supervision periods, including lifetime
supervision, for persons convicted of terrorism crimes (a
similar approach is found in the drug crimes statute, which
imposes a term of supervised release of at least 10 years,
instead of 5 years, in cases where there is a prior
conviction).
Section 813: Inclusion of Acts of Terrorism Crimes as
Racketeering Activity--Provides that any terrorism-related
crimes can be RICO predicates.
Section 814: Deterrence and Prevention of Cyberterrorism--
Alters damage and civil liability triggers for computer hacking
offenses. Also eliminates mandatory minimums in current law for
computer hacking offenses.
Section 815: Additional Defense to Civil Actions Relating
to Preserving Records in Response to Government Requests--
Eliminates any ISP liability to customers for turning customer
records over to law enforcement pursuant to any statutory
authorization.
Section 816: Development and Support of Cybersecurity
Forensic Capabilities--Requires the Attorney General to
establish regional computer forensic laboratories.
Section 817: Biological Weapons--Makes it an offense for a
person to possess a biological weapon that is not reasonably
justified, under the circumstances, by a prophylactic,
protective, bona fide research, or other peaceful purpose.
TITLE IX: IMPROVED INTELLIGENCE
Section 901: Responsibilities of Director of Central
Intelligence Regarding Foreign Intelligence Collected under
FISA--Authorizes the Director of the CIA to establish
requirements and priorities for collecting foreign
intelligence, and to provide assistance to the Attorney General
in ensuring that information derived from electronic
surveillance or physical searches is properly disseminated. The
DCI cannot direct, manage, or undertake electronic surveillance
or physical search operations unless otherwise authorized by
statute or executive order.
Section 902: Inclusion of International Terrorist
Activities within Scope of Foreign Intelligence under the
National Security Act--Includes international terrorist
activities within the scope of foreign intelligence under the
National Security Act.
Section 903: Sense of Congress--Sense of Congress on the
establishment of intelligence relationships to acquire
information on terrorists.
Section 904: Temporary Authority to Defer Submittal to
Congress of Reports on Intelligence and Intelligence-Related
Matters--Grants DCI temporary authority to delay submittal of
reports to Congress on intelligence matters.
Section 905: Disclosure to Director of Central Intelligence
of Foreign Intelligence-Related Information with Respect to
Criminal Investigations--Requires the Attorney General to
disclose to the CIA Director foreign intelligence acquired by
the Justice Department in the course of a criminal
investigation, except when disclosing such information would
jeopardize an ongoing investigation.
Section 906: Foreign Terrorist Asset Tracking Center--
Requires the DCI, the AG, and the Secretary of the Treasury to
report to Congress by February 1, 2002, on the desirability of
a Foreign Asset Tracking Center to track terrorist assets.
Section 907: National Virtual Translation Center--Requires
the DCI and the FBI to report to Congress on the establishment
of a National Virtual Translation Center.
Section 908: Training of Government Officials Regarding
Identification and Use of Foreign Intelligence--Requires DCI
and AG to establish program to train officials to handle
foreign intelligence information.
TITLE X: MISCELLANEOUS
Section 1001: Review of the Department of Justice--Requires
DOJ Inspector General to designate one official to receive
complaints of civil liberties and civil rights abuses and to
report such abuses to Congress semi-annually.
Appendix B, Summary of 16 Expiring Provisions
Below is a summary of each of the sixteen sections set to
expire this year pursuant to section 224 (the sunset does not
apply to on-going investigations), an explanation of how each
has been used, and any concerns related to such authorities:
Sec. 201--Authority to intercept wire, oral, and electronic
communications relating to terrorism
This section adds terrorism offenses to the list of
predicates for title III wiretaps. Title III is used for
criminal investigations.
Sec. 202--Authority to intercept wire, oral, and electronic
communications relating to computer fraud and abuse offenses
This section adds computer fraud and abuse offenses as
predicates for title III wiretaps.
Sec. 203(b) and (d)--Authority to share electronic, wire, and oral
interception information; Authority to share foreign
intelligence information
Section 203(b) allows the government to share information
from criminal wiretaps and electronic surveillance with federal
law enforcement, immigration, and national security personnel
as long as notice is given to the court after the disclosure.
The recipient can use information only in the conduct of their
duties subject to disclosure limitations in current law.
Section 203(d) allows the FBI to share intelligence
information with other federal law enforcement, immigration,
and national security personnel. The Attorney General must
establish procedures for the release of this information in the
case of a U.S. person.
Sec. 204--Clarification of intelligence exceptions from limitations on
interception and disclosure of wire, oral, and electronic
communications
This section carves out foreign intelligence surveillance
operations from the Electronic Communications Privacy Act,
which imposes limits on the placement of wiretaps.
Sec. 206--Roving surveillance authority under the Foreign Intelligence
Surveillance Act
This section allows the FBI to use roving wiretaps under
FISA. This means that the FBI can obtain a single court order
to tap any phone they believe a foreign agent would use,
instead of getting separate court orders for each phone. The
government need not name the target.
Sec. 207--Duration of FISA surveillance of non-United States persons
who are agents of a foreign power
This section lets the FBI obtain FISA search and
surveillance orders for longer periods of time than they could
have prior to the PATRIOT Act:
1. Wiretap orders relating to an agent of foreign power
increased from 90 days to 120 days, and subsequent extensions
were increased from 90 days to a year;
2. Physical searches of non-U.S. persons who are agents of
a foreign power increased from 45 days to 120 days, and
subsequent extensions were left at one year intervals;
3. All other physical searches--including those against
U.S. persons--were extended from 45 to 90 days, and subsequent
extensions were left at one year intervals.
These can be compared to wiretaps in the criminal context
that are authorized and extended for only 30 days at a
time.\129\
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\129\ USA Patriot Act: Sunsets Reports, April 2005, Department of
Justice.
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Sec. 209--Seizure of voice mail messages pursuant to warrants
This section provides that the FBI can access voice mails
the same way it accesses e-mails and authorizes nationwide
service with a single search warrant.
Sec. 212--Emergency Disclosures of Communications held by Phone
Companies and Internet Service Providers
This section permits telephone companies and Internet
Service Providers (ISPs) to disclose to the government, without
penalty, customer communications and records if they think
there is a danger of death or serious injury. This section
precludes liability regardless of whether the company
innocently stumbles on the information itself and approaches
the government, or whether law enforcement initiates the
disclosure itself. Because this section directly amended Title
18 of the U.S. Code, it can be used in any run-of-the-mill
criminal investigation and has no ties to terrorism cases. In
fact, all of the examples cited by the Justice Department are
non-terror cases, including a bomb threat against a school,
numerous kidnaping cases, and computer hacking threats.\130\
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\130\ See Reports From the Field: The USA Patriot Act at Work, U.S.
Department of Justice, July 2004.
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Sec. 214--Pen register and trap and trace authority under FISA
This section made it easier for the FBI to get a pen
register or trap-and-trace under FISA.\131\ The FBI needs to
prove the order is needed to obtain foreign intelligence
information not concerning a U.S. person or to protect against
international terrorism or clandestine intelligence activities.
Prior to the PATRIOT Act, the FBI needed to establish that the
telephone line in question had been used or was about to be
used in connection with terrorism or a crime; this requirement
was deleted. Before section 214, the government had to prove
that the target was an agent of a foreign power; now, they need
only prove that the information is related to a terror or
intelligence investigation. This extremely broad qualification
of a FISA pen register/trap and trace order has led many groups
to oppose it.\132\
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\131\ A pen register is used to record the phone numbers that are
dialed from a target phone. A trap-and-trace is used to record the
phone numbers of the incoming calls to a target phone.
\132\ See, for example, Electronic Privacy Information Center ``The
USA PATRIOT Act,'' at www.epic.org/privacy/terrorism/usapatriot/.
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Sec. 215--Access to records and other items under the Foreign
Intelligence Surveillance Act
This section expanded the FBI's ability to obtain business
records under FISA. Before the Act, the government could seek
records only from hotels/motels, storage facilities and car
rental companies; now, it can seek ``any tangible thing'' from
any business. To obtain such records, the FBI Director (or his
designee) must seek an order from the Foreign Intelligence
Surveillance Court and specify that the records are sought for
foreign intelligence information not concerning a U.S. person
or are sought to protect against international terrorism or
intelligence gathering. Upon receipt of such a request, the
court must grant the order. Recipients are prohibited from
disclosing to anyone but their attorneys that they have
received a section 215 request.
Sec. 217--Interception of computer trespasser communications
This section allows persons ``acting under color of law''
to intercept computer communications if a computer owner
authorizes it, and if the person acting under color of law is
acting pursuant to a lawful investigation.
Sec. 218--Foreign intelligence information
This section says the FBI needs to aver that a
``significant'' purpose of a FISA order request is to gather
foreign intelligence; before the Act, the FBI needed to show
that obtaining foreign intelligence was the ``primary purpose''
of the order.
The effect of letting the status quo continue is that
evidence obtained from a FISA warrant under FISA's statutory
``probable cause'' standard can be given to non-terror criminal
prosecutors who are governed by the higher standard of 4th
Amendment probable cause. In fact, the lower standard FISA
warrant can be sought for criminal prosecution purposes, as
long as terrorism or national intelligence is some small part
of the reason. The long-standing policy of not letting criminal
prosecutors direct intelligence investigations has been
vitiated.
Sec. 220--Nationwide service of search warrants for electronic evidence
This section allows a single court to issue a search
warrant for electronic evidence that is valid nationally.
According to the Department's May 13, 2003 letter, it has used
this authority to track a fugitive and to track a hacker who
stole trade secrets from a company and then extorted money from
it.\133\
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\133\ Id. at 24.
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Sec. 223--Civil liability for certain unauthorized disclosures
This section was included by Rep. Barney Frank to increase
civil liability for unauthorized disclosure of pen/trap,
wiretap, e-mail, or FISA information. In its May 13, 2003
letter to the Committee, the Department stated there had been
no administrative disciplinary proceedings or civil actions
under section 223.
Sec. 225--Immunity for compliance with FISA wiretap
This section immunizes private parties who comply with FISA
court orders or ``requests for emergency assistance'' otherwise
authorized under FISA. Immunity already existed for criminal
cases, and this section intended to provide the same for people
who cooperated with officials in terror or intelligence cases.
``Lone Wolves'' as Agents of a Foreign Power
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 created the so-called ``lone wolf''
provision of FISA redefining the ``agent of a foreign power''
to include those who ``engage in international terrorism or
activities in preparation therefore.'' In other words, agents
of a foreign power no longer need to have any connection to a
foreign power. This is limited to non-U.S. persons, although a
leaked ``PATRIOT II'' bill authored by the Justice Department
would have expanded the lone wolf provision to cover U.S.
persons as well.
The purpose of FISA always has been espionage and terrorism
surveillance against foreign governments, foreign groups, or
individuals associated with such governments or groups. Section
6001 expanded FISA to include any single person who engages in
a violent act that (1) transcends national boundaries and (2)
is intended to coerce the government or a civilian population.
When this provision passed committee in the markup of H.R.
10, it had a rebuttable presumption that a FISA judge could
invoke when the target had no ties to foreign governments
whatsoever. That provision was removed before the bill went to
the floor.
John Conyers, Jr.
Robert C. Scott.
Maxine Waters.
William D. Delahunt.
Anthony D. Weiner.
Linda T. Sanchez.
Debbie Wasserman Schultz.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
Robert Wexler.
Chris Van Hollen.
