109th Congress Rept. 109-174
HOUSE OF REPRESENTATIVES
1st Session Part 2
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USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005
_______
July 18, 2005.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hoekstra, from the Permanent Select Committee on Intelligence,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3199]
[Including cost estimate of the Congressional Budget Office]
The Committee on Permanent Select Committee on
Intelligence, 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.
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. REPEAL OF USA PATRIOT ACT SUNSET PROVISION.
Section 224 of the USA PATRIOT ACT is repealed.
SEC. 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 of 2004 (Public Law 108-458; 118 Stat. 3742)
is amended to read as follows:
``(b) Sunset.--(1) Except as provided in paragraph (2), the amendment
made by subsection (a) shall cease to have effect on December 31, 2010.
``(2) With respect to any particular foreign intelligence
investigation that began before the date on which the amendment made by
subsection (a) ceases to have effect, such amendment shall continue in
effect.''
SEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SECTION 2332B AND THE
MATERIAL SUPPORT SECTIONS OF TITLE 18, UNITED
STATES CODE.
Section 6603 of the Intelligence Reform and Terrorism Prevention Act
of 2004 (Public Law 108-458; 118 Stat. 3762) is amended by striking
subsection (g).
SEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION
UNDER SECTION 203(B) OF THE USA PATRIOT ACT.
Section 2517(6) of title 18, United States Code, is amended by adding
at the end the following: ``Within a reasonable time after a disclosure
of the contents of a communication under this subsection, an attorney
for the Government shall file, under seal, a notice with a judge whose
order authorized or approved the interception of that communication,
stating the fact that such contents 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 501 OF FISA
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 in response 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 in response 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. MODIFICATION OF SURVEILLANCE AUTHORITY UNDER THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978.
Subsection (c)(2) of section 105 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) by striking ``and'' at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D) and
inserting ``;and''; and
(3) by adding at the end the following new subparagraph:
``(E) that, in cases where the facility or place at which
surveillance will be directed is not known at the time the order is
issued, the applicant shall notifiy a judge having jurisdiction under
section 103 within a reasonable period of time, as determined by the
court, after surveillance begins to be directed at a new facility or
place, and that 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 was directed
is being used, or is about to be used, by the target of the electronic
surveillance.''.
Purpose
The purpose of H.R. 3199 is to extend and modify
authorities needed to combat terrorism and espionage provided
in the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
(``USA PATRIOT'') Act of 2001 and the Intelligence Reform and
Terrorism Prevention Act of 2004.
Committee Statement and Views
A. Background and need for legislation
Immediately after the terrorist attacks of September 11,
2001, Congress and the Administration quickly determined that
the legal tools available to investigators to fight terrorists
and spies were inadequate. The USA PATRIOT Act of 2001 provided
critical additional tools to intelligence and law enforcement
officials in counterterrorism and counterespionage
investigations, and implemented reforms to facilitate better
information sharing between the intelligence and law
enforcement communities.
The authorities of the USA PATRIOT Act have been used
continuously since its enactment to enhance the federal
government's capacity to gather and share intelligence. Many of
the results have been clear and demonstrable. For example, the
National Counterterorism Center receives and shares information
on a daily basis with law enforcement agencies, and has
estimated that the number of known or appropriately suspected
terrorists intercepted at borders of the United States, based
on FBI reporting alone, has increased due to the information
sharing provisions of the USA PATRIOT Act. In another example,
the Department of Justice has applied Section 214 of the Act to
international terrorism and counterintelligence investigations,
including a case where the subject was believed to be
attempting to procure nuclear arms.
Other successes of the USA PATRIOT Act have not been as
publicly apparent but are equally, if not more, significant.
The Permanent Select Committee on Intelligence receives regular
and detailed classified reporting with respect to the exercise
of authorities under the Foreign Intelligence Surveillance Act
(``FISA''), including the enhancements provided under the USA
PATRIOT Act. Although it cannot be discussed in an unclassified
format, this reporting clearly has established the vital role
that these enhanced authorities play on a daily basis in a wide
variety of critical counterintelligence and counterterrorism
investigations.
In considering reauthorization of the Act, the Committee
has endeavored to emphasize that many of the core enhanced
authorities of the USA PATRIOT Act are fundamentally
intelligence authorities intended to gather information to
counter threats to national security from terrorists and spies.
The Act provides enhanced but carefully tailored authorities,
usually targeted against ``foreign powers'' and ``agents of
foreign powers.'' The PATRIOT Act also has definitively broken
down the ``wall'' between intelligence and law enforcement
agencies to allow them to share information, free of artificial
stovepipes.
What the PATRIOT Act is not, either in intent or practice,
is a license for the government to invade the privacy of
ordinary citizens or to violate civil liberties. The Department
of Justice Inspector General reported earlier this year that it
had received 1,943 allegations of abuse of the PATRIOT Act.
None of those complaints were found to have even alleged
misconduct by Justice Department employees relating to use of a
provision in the PATRIOT Act, and only 12 warranted further
investigation for civil liberties issues unrelated to the
PATRIOT Act.
Under Section 224 of the USA PATRIOT Act, the authorities
contained in sixteen of its provisions are scheduled to expire
on December 31, 2005. Ten of those provisions concern
intelligence and intelligence-related matters within the
jurisdiction of the Permanent Select Committee on Intelligence:
Section 203(b). Authority to Share Electronic, Oral,
and Wire Interception Information
Section 203(d). Foreign Intelligence Information
Section 204. Clarification of Intelligence Exceptions
From Limitations on Interception and Disclosure of
Wire, Oral, and Electronic Communications
Section 206. Roving Surveillance Authority Under FISA
Section 207. Duration of FISA Surveillance of Non-
United States Persons Who Are Agents of a Foreign Power
Section 214. Pen Register and Trap and Trace
Authority Under FISA
Section 215. Access to Records and Other Items Under
FISA
Section 218. Foreign Intelligence Information
Section 223. Civil Liability for Certain Unauthorized
Disclosures (with respect to duties imposed on
intelligence agencies)
Section 225. Immunity for Compliance with FISA
Wiretap
In addition, the Committee has considered renewal of
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004, relating to individual terrorists as
agents of foreign powers, which is also scheduled to expire on
December 31, 2005.
The record in support of reauthorizing these provisions is
clear and convincing. The expiring provisions have been the
subject of intense public scrutiny and oversight, through
regular reporting by the Executive Branch, review by the
Department of Justice Inspector General, and regular oversight
hearings and activities of the Committee. The Committee has
determined that the expiring authorities have generally been
demonstrated to be critical and effective authorities in
counterterrorism and counterespionage investigations, or
authorities necessary to ensure that investigators are fully
equipped to swiftly and efficiently prevent or respond to acts
of terrorism or espionage. Conversely, the oversight process
has not discovered any substantial claim that the provisions of
the USA PATRIOT Act had been abused.
B. Legislation
Accordingly, H.R. 3199 as reported from the Permanent
Select Committee on Intelligence permanently reauthorizes the
expiring provisions of the USA PATRIOT Act. As amended, the
bill also reauthorizes Section 6001 of the Intelligence Reform
and Terrorism Prevention Act of 2004 through December 31, 2010.
The bill also includes provisions requested by the
Administration to extend to up to a year the maximum duration
of certain FISA orders targeted against ``agents of foreign
powers'' who are not U.S. persons and reforms to clarify
concerns that have been raised with respect to the original
authorities.
The Committee's hearings suggested that some fair concerns
had been raised with respect to unintended ambiguities in the
original law. Accordingly, the bill also contains sensible
changes to clear up those ambiguities once and for all without
compromising investigators. These provisions include four key
reforms to Section 215 of the PATRIOT Act, which allows
investigators to obtain permission to access to certain
business records from judges:
Establishes a relevance standard to
textually clarify that Section 215 orders must be
relevant to an ongoing investigation to protect against
international terrorism or clandestine intelligence
activities. This provision is intended to clarify the
original intention of the specification requirement and
is not intended to ``raise'' the standard for the
specification required under Section 215;
Clarifies that judges have the discretion to
modify requested orders;
Clarifies that the recipient of a Section
215 order may discuss the order with an attorney to
obtain legal advice and may challenge the order;
Provides for a panel of judges from the FISA
court to review challenges to the legality of a Section
215 order.
The bill also includes a provision to require that federal
judges responsible for wiretaps in criminal cases be notified
(under seal) when information from those wiretaps is shared
with the intelligence community.
Committee Consideration and Votes
On July 13, 2005, the Committee met in open session and
ordered the bill H.R. 3199 favorably reported, as amended.
Ms. Harman offered and, after debate, subsequently received
unanimous consent to withdraw an en bloc amendment to modify
certain standards relating to the exercise of authorities
provided by Sections 206, 214 and 215 of the USA PATRIOT Act,
to modify authorities on review of motions to discover
materials under the Foreign Intelligence Surveillance Act, and
to provide subsequent notice in specified circumstances to the
subjects of certain FISA search and surveillance who are United
States persons.
Ms. Harman offered a modified version of an en bloc
amendment to modify certain standards relating to the exercise
of authorities provided by Sections 206, 214 and 215 of the USA
PATRIOT Act, to modify authorities on review of motions to
discover materials under the Foreign Intelligence Surveillance
Act, and to provide subsequent notice in specified
circumstances to the subjects of certain FISA search and
surveillance who are United States persons. After debate, the
amendment was not agreed to by voice vote.
Mr. Ruppersberger offered an amendment to extend certain
USA PATRIOT Act sunset requirements. After debate, the
amendment was not agreed to by voice vote.
Ms. Eshoo offered an amendment relating to library and
bookseller records. After debate, the amendment was not agreed
to by voice vote.
Mr. Boswell offered an amendment relating to notification
to judges in specified circumstances under authorities provided
by Section 206 of the USA PATRIOT Act (codified at Section 105
of the Foreign Intelligence Surveillance Act). After debate,
the amendment was adopted by voice vote.
Mr. Hastings offered an amendment to extend the sunset
provision relating to authorities regarding individual
terrorists as agents of foreign powers (Section 6001 of the
Intelligence Reform and Terrorism Prevention Act of 2004).
After debate, the amendment was adopted by voice vote.
By voice vote, the Committee adopted a motion by the
Chairman to favorably report the bill H.R. 3199 to the House,
as amended, and to recommend that the bill as amended do pass.
Section-by-Section Analysis and Explanation of Amendments
The provisions of the bill are as follows:
Section 1. Short Title.--provides that the short title of
the bill is the ``USA PATRIOT and Terrorism Prevention
Reauthorization Act of 2005.''
Section 2. References to PATRIOT Act.--Provides that,
within the bill, 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
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.
Section 4. Repeal of Sunset of Individual Terrorists as
Agents of Foreign Powers.--This section repeals section 6001(b)
of the Intelligence Reform and Terrorism Prevention Act,
(IRTPA) which applied the USA PATRIOT Act sunset to the new
definition for ``Agent of a Foreign Power'' under section 6001.
Section 6001 provides that ``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''. The new definition reaches ``lone wolf''
terrorists engaged in international terrorism.
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 have sunset section 6603. The sunset would
allow a criminal offense, and not a law enforcement tool, to
expire. Furthermore, this sunset effectively makes the
underlying provision unconstitutional. Section 6603 of the
IRTPA addressed the prohibition against providing material
support to terrorists and amended the law to address court
concerns on the constitutionality of the material support
prohibition.
Section 6. Sharing of Electronic, Wire, and Oral
Interception Information.--This section 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 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.
The Committee emphasizes that such notices shall be made
under seal, as well as its intention that the provision should
be implemented to insure the protection of the notices as well
as intelligence sources and methods.
Section 7. Duration of FISA of Non-United States Persons.--
This section would (1) Further extend the maximum duration of
orders for electronic surveillance and physical search targeted
against all agents of foreign powers who are not U.S. persons.
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; and (2) extend the
maximum duration of both initial and renewal orders for pen
register/trap and trace surveillance, in cases where the
Government certified that the information likely to be obtained
is foreign intelligence information not concerning a U.S.
person, for a period of one year.
Section 8. Access to Certain Business Records Under Section
501 of FISA.--This section would amend section 215 of the USA
PATRIOT Act to (1) 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; (2) clarify
that a FISA 215 order may be challenged; (3) clarify that a
recipient of a 215 order may consult with a lawyer and the
appropriate people necessary to comply with the order; (4)
clarify that the order will only be issued ``if the judge finds
that the requirements have been met;'' and (5) to set up a
judicial review process that authorizes the judge to set aside
or affirm a 215 order that has been challenged.
The committee adopted two amendments. An amendment by Mr.
Boswell provides that, within a reasonable period of time after
surveillance begins, the applicant shall notify a judge
whenever surveillance begins to be directed at a new facility
or place under authorities provided by Section 206 of the USA
PATRIOT Act (as codified in Section 105 of the Foreign
Intelligence Surveillance Act). An amendment by Mr. Hastings
provides that Section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 shall expire on December 31,
2010.
Oversight Findings and Recommendations
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the Committee held 2 hearings on
reauthorization of the USA PATRIOT Act, receiving testimony
from Deputy Attorney General James Comey as well as outside
experts and citizens' groups.
General Performance Goals and Objectives
In accordance with Clause (3)(c) of House rule XIII, the
Committee's performance goals and objectives are reflected in
the descriptive portions of this report.
Constitutional Authority Statement
The intelligence and intelligence-related activities of the
United States government are carried out to support the
national security interests of the United States.
Article 1, section 8 of the Constitution of the United
States provides, in pertinent part, that ``Congress shall have
power * * * to pay the debts and provide for the common defense
and general welfare of the United States; * * * ''; and ``to
make all laws which shall be necessary and proper for carrying
into execution * * * all other powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.''
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. In compliance with this requirement, the Committee
has received a letter from the Congressional Budget Office
included herein.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 3199 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 18, 2005.
Hon. Peter Hoekstra,
Chairman, Permanent Select Committee on Intelligence,
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 Jason
Wheelock.
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 Committee on the
Judiciary on July 13, 2005. The two versions of H.R. 3199 are
similar and the cost estimates are identical.
The CBO staff contact for this estimate is Jason Wheelock.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made 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 change is
proposed is shown in roman):
SECTION 224 OF THE USA PATRIOT ACT
[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.]
----------
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) * * *
[(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.]
(b) Sunset.--(1) Except as provided in paragraph (2), the
amendment made by subsection (a) shall cease to have effect on
December 31, 2010.
(2) With respect to any particular foreign intelligence
investigation that began before the date on which the amendment
made by subsection (a) ceases to have effect, such amendment
shall continue in effect.
* * * * * * *
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.]
* * * * * * *
----------
SECTION 2517 OF TITLE 18, UNITED STATES CODE
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.
* * * * * * *
----------
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) * * *
* * * * * * *
(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 cases where the facility or
place at which surveillance will be directed is
not known at the time the order is issued, the
applicant shall notify a judge having
jurisdiction under section 103 within a
reasonable period of time, as determined by the
court, after surveillance begins to be directed
at a new facility or place, and that 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 was
directed is being used, or is about to be used,
by the target of the 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
in response 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 in response 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.
* * * * * * *
ADDITIONAL VIEWS
Preliminary note
We commend Chairman Hoekstra for taking the unprecedented
step of allowing a member of the press to attend the mark-up of
H.R. 3199 and for making the transcript of the session
available to the public. This action demonstrates that the
Committee can have candid debate about intelligence policy in
an unclassified setting. Unfortunately, the public was not
permitted to attend this mark-up because it occurred in the
Committee's secure facility. We hope that future mark-ups will
take place in a venue accessible to all--so that the American
people can have confidence in our work.
Introduction
The U.S. government needs effective tools to combat
terrorism. The terrorist threat is real--and if we are going to
demand that the FBI uncover terror cells here in the U.S., we
need to give them the tools to do that.
The last time Congress considered the PATRIOT Act, it was
also in the shadow of terrorism. It was just 45 days after 9/
11; we were bracing for more terror; the invasion of
Afghanistan had begun; and Capitol Hill was hit with anthrax
attacks. Given these intense pressures, Congress did a fairly
decent job with the PATRIOT Act, which modernized a number of
legal authorities and gave the FBI new tools to track
terrorists here at home. But we can do better.
Improving the PATRIOT Act
The mark-up of H.R. 3199 was our Committee's opportunity to
improve the PATRIOT Act. As Deputy Attorney General Jim Comey
told our Committee when he briefed us, any expansion of
government power must be carefully justified and tailored so
that it does not facilitate abuse or unwarranted intrusions
into our privacy.
Improving the PATRIOT Act is not a partisan issue. The SAFE
Act, which makes improvements to PATRIOT Act authorities, is
bipartisan legislation that had 71 cosponsors in the last
Congress. The Sanders Amendment to the Science, State, Justice,
Commerce FY 2006 Appropriations bill--which prohibited spending
funds to obtain library or bookstore documentary records under
Seciton 215 of the Act, but properly excluded internet
records--passed 238-187, with a large number of Republican
votes, including one House Permanent Select Committee on
Intelligence (HPSCI) majority Member.
H.R. 3199 is a good start. For example, it would allow the
recipients of Section 215 orders to consult with an attorney
and challenge the order before a federal judge. The bill also
excludes some expansive provisions that our counterparts in the
Senate adopted, including administrative subpoenas, mail
covers, and a broader definition of foreign intelligence.
Our package of common-sense amendments (described below),
were shared with the Majority and were developed with input
from a range of Members and outside groups. The Ranking Member
also personally shared our proposals with Attorney General
Gonzales and FBI Director Mueller. Our staffs have discussed
them on a bipartisan basis.
The Committee received letters from the American Civil
Liberties Union, as well as the Patriots to Restore Checks and
Balances, a coalition led by former Rep. Bob Barr. Those
letters, which are part of the official record of the mark-up,
indicate support for efforts to improve the PATRIOT Act, along
the lines of our amendments.
Of the five Democratic amendments offered at the mark-up,
two passed on a voice vote by the Committee. Representative
Boswell offered an amendment to impose a ``return'' requirement
on roving ``John Doe'' wiretaps under Section 206.
Representative Hastings offered an amendment to sunset the
``Lone Wolf'' provision in 2010.
The Committee rejected three other amendments that we
believe were meritorious. Representative Harman's en bloc
amendment would have made several critical changes to Sections
206, 214 and 215. Representative Ruppersberger offered an
amendment to sunset all 10 expiring provisions under the
Committee's jurisdiction in 2009. Representative Eshoo offered
an amendment to prevent Section 215 orders from being used to
obtain library or bookstore documentary records. All three of
these amendments failed on voice vote.
We are committed to offering these amendments on the floor,
and we urge the Rules Committee to allow their consideration by
the full House.
Our proposals are moderate. And they would not compromise
that ability to catch terrorists or spies. They will merely
adjust the authorities of the PATRIOT Act to preserve our
liberties.
As Benjamin Franklin said more than 200 years ago: ``Those
who would sacrifice liberty to purchase a bit of security
deserve neither liberty nor security.''
Detailed discussion of amendments
Five amendments were offered by Committee Democrats.
Representative Harman offered an en bloc amendment related
to several sections of the PATRIOT Act.
With respect to Sections 214 and 215, the Harman amendment
would require government Foreign Intelligence Surveillance Act
(FISA) applications for tangible items as well as pen register
and trap and trace orders to assert there are ``specific and
articulable facts'' giving reason to believe that the records
sought relate to a foreign power or an agent of a foreign
power, and to include an explanation that supports the
assertion such facts exist.
These provisions would retain the ability of the government
to seek court approval to obtain items and information under
Sections 214 and 215. But, they would also align this sweeping
power with the traditional FISA standard by requiring
individualized suspicion. Nothing in the amendment would hamper
the government's ability to go after suspected terrorists or
their associates, such as 9-11 hijacker Mohammad Atta or his
roommate.
The Harman amendment would also prohibit Section 215 from
being used for the production of library circulation records,
library patron lists, book sales records, or book customer
lists. This mirrors the limitation included in an amendment
offered by Representative Sanders to the Science, State
Justice, Commerce FY 2006 Appropriations. That amendment passed
the full House 238-187 on June 15, 2005.
With respect to Section 206, the amendment would modify the
expansive authority for ``John Doe'' roving wiretaps in three
ways. First, it would require the description of a target to be
``sufficiently specific'' for the court to find probable cause
to believe the target is a foreign power or an agent of a
foreign power--something Department of Justice officials say
they already do. Second, it would also limit the time of
surveillance to the period reasonable to assume the target is
near the phone or computer to be tapped. Third, it would
require the government to notify the FISA Court within a
reasonable period of time after surveillance begins at a new
facility or place, and to provide an explanation of the facts
and circumstances surrounding the decision to target a
particular facility or place. This requirement would allow the
FISA Court to better assess whether ``John Doe'' roving
wiretaps authorized under Section 206 were carried out
properly.
Finally, the Harman amendment would modify FISA in
additional ways to protect due process rights of FISA targets.
It would require the court to disclose to criminal defendants
or other aggrieved persons, and/or their counsels, under
procedures and standards established in the Classified
Information Procedures Act (CIPA) (18 U.S.C. App. 3),
information and materials gathered pursuant to FISA orders.
These procedures are used commonly in national security cases
where individuals are prosecuted on the basis of secret
evidence.
It would also ensure that U.S. citizen FISA targets who are
determined not to be an agent of a foreign power are notified
they were the target of FISA searches, surveillance, or pen
registers and traps and traces. Such notification would only
occur after the Attorney General determines that disclosure
would not compromise an ongoing investigation. This would help
ensure that individuals--such as Brandon Mayfield who was
wrongly jailed in connection with the Madrid bombings and later
exonerated--are notified of surveillance and secret searches of
their homes.
The Harman en bloc amendment was not agreed to.
Representative Ruppersberger offered an amendment to extend
to December 31, 2009 the sunsets for intelligence-related
sections of the PATRIOT Act and Section 6001 of the
Intelligence Reform and Terrorism Prevention Act (P.L. 108-458)
(the so-called ``Lone Wolf'' provision). This provision would
have allowed law enforcement to continue to conduct
investigations using these authorities. But, it would also
force Congress and the Executive Branch to reevaluate in four
years whether they are truly effective in fighting terrorism
and their impact on civil liberties and privacy.
The Ruppersberger amendment was not agreed to.
An amendment offered by Representative Eshoo would have
exempted library circulation records, library patron lists,
book sales records, or book customer lists from the list of
tangible things authorized to be obtained under Section 215 of
the PATRIOT Act. This mirrors the limitation included in an
amendment offered by Representative Sanders to the Science,
State, Justice, Commerce FY 2006 Appropriations bill which
passed the House 238-187 on June 15, 2005.
During Committee hearings, Department of Justice officials
stated that it has not sought library or bookstore documentary
records, and the Committee has received no testimony indicating
that this power under Section 215 is necessary to stop
terrorism. These records may always be obtained by law
enforcement through other methods, such as warrants or
subpoenas.
The Eshoo amendment was not agreed to.
Representative Boswell offered an amendment to Section 206
of the PATRIOT Act. Section 206, which has been the center of
much debate, gives the government broad authority to conduct
court-approved roving wiretaps under FISA when neither the
identify nor the location of the target is known.
The Boswell amendment would require the government to
notify the FISA Court within a reasonable period of time after
surveillance begins at a new facility or place, and to provide
an explanation of the facts and circumstancessurrounding the
decision to target a particular facility or place. This requirement
would allow the FISA Court to better assess whether ``John Doe'' roving
wiretaps authorized under Section 206 were carried out properly. Such
enhanced transparency is essential for ensuring proper judicial
oversight of this significant authority.
The Boswell amendment was agreed to by voice vote.
An amendment offered by Representative Alcee Hastings would
extend until 2010 the sunset of Section 6001 of the
Intelligence Reform and Terrorism Prevention Act (P.L. 108-
458), the so-called ``Lone Wolf'' provision. The Lone Wolf
provision, which sunsets in December 2005, broke from the
tradition of FISA by abandoning the requirement that a non-U.S.
person, suspected terrorist target have a nexus to a foreign
power. Although only seven months have passed since the Lone
Wolf provision became law, H.R. 3199 would have made it
permanent. This short period is inadequate for the government
and public to assess the effectiveness and impact of this
significant expansion of government authorities.
The Hastings amendment would allow the government to retain
the authority to target Lone Wolf terrorists and ensure
investigations initiated before the sunset date are allowed to
continue. Moreover, it would ensure this significant expansion
of power is subject to a meaningful trial period before it is
made permanent.
The Hastings amendment was agreed to by voice vote.
Motion to report the bill favorably
The motion to report favorably H.R. 3199, as amended, to
the House of Representatives was adopted by voice vote.
Representatives Hastings, Eshoo, Holt and Tierney asked that
the record reflect that they voted ``no'' on the motion.
Jane Harman.
Silvestre Reyes.
Leonard L. Boswell.
Bud Cramer.
Anna G. Eshoo.
C.A. Dutch Ruppersberger.
ADDITIONAL VIEWS
I accept the Minority's Additional Views, above, but find
that the last paragraph of the introduction in some respects
seems to omit procedural faults in the 2001 consideration and
action on the so-called Patriot Act. A fuller account would
record: that the Judiciary Committee of the House considered
and passed by a large majority--if not unanimously--a version
that most members believed acceptably struck a balance between
the need to arm intelligence and law enforcement authorities
with proper tools and the maintenance of constitutional civil
rights. Those provisions where disagreement existed were
``sunsetted.''
In the dark of night during October 2001, the Majority
Party's Rules Committee affected a Rule, passage of which
struck the Judiciary Committee's product and substituted the
final version now before Congress. That final version, in the
view of a number of Members, and in the view of scores of local
communities, experts and others--intruded needlessly upon civil
liberties as it departed from the Judiciary Committee's work.
Numerous reasonable recommendations for correcting such
excesses have been suggested. They would continue to provide
needed tools to officials as they confront terrorist
activities, while upholding the Constitution's hard fought and
hard won rights for individuals. Congress has the chance during
this review of the law to correct the problems contained in the
earlier legislation through questionable procedural conduct.
John F. Tierney.
