109th Congress Rept. 109-174\r\n HOUSE OF REPRESENTATIVES\r\n 1st Session Part 1\r\n\r\n======================================================================\r\n\r\n\r\n\r\n\r\n USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005\r\n\r\n _______\r\n \r\n\r\n July 18, 2005.--Ordered to be printed\r\n\r\n _______\r\n \r\n\r\n Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the \r\n following\r\n\r\n R E P O R T\r\n\r\n together with\r\n\r\n DISSENTING VIEWS\r\n\r\n [To accompany H.R. 3199]\r\n\r\n [Including cost estimate of the Congressional Budget Office]\r\n\r\n The Committee on the Judiciary, to whom was referred the bill \r\n(H.R. 3199) to extend and modify authorities needed to combat \r\nterrorism, and for other purposes, having considered the same, \r\nreport favorably thereon with an amendment and recommend that \r\nthe bill as amended do pass.\r\n\r\n CONTENTS\r\n\r\n Page\r\nThe Amendment.................................................... 2\r\nPurpose and Summary.............................................. 5\r\nBackground and Need for the Legislation.......................... 6\r\nHearings......................................................... 47\r\nCommittee Consideration.......................................... 47\r\nVote of the Committee............................................ 47\r\nCommittee Oversight Findings..................................... 71\r\nNew Budget Authority and Tax Expenditures........................ 72\r\nCongressional Budget Office Cost Estimate........................ 72\r\nPerformance Goals and Objectives................................. 73\r\nConstitutional Authority Statement............................... 73\r\nSection-by-Section Analysis and Discussion....................... 73\r\nChanges in Existing Law Made by the Bill, as Reported............ 81\r\nMarkup Transcript................................................ 95\r\nDissenting Views................................................. 444\r\n\r\n The Amendment\r\n\r\n The amendment is as follows:\r\n Strike all after the enacting clause and insert the \r\nfollowing:\r\n\r\nSECTION 1. SHORT TITLE.\r\n\r\n This Act may be cited as the ``USA PATRIOT and Terrorism Prevention \r\nReauthorization Act of 2005''.\r\n\r\nSEC. 2. REFERENCES TO USA PATRIOT ACT.\r\n\r\n A reference in this Act to the USA PATRIOT ACT shall be deemed a \r\nreference to the Uniting and Strengthening America by Providing \r\nAppropriate Tools Required to Intercept and Obstruct Terrorism (USA \r\nPATRIOT ACT) Act of 2001.\r\n\r\nSEC. 3. USA PATRIOT ACT SUNSET PROVISIONS.\r\n\r\n (a) In General.--Section 224 of the USA PATRIOT ACT is repealed.\r\n (b) Sections 206 and 215 Sunset.--Effective December 31, 2015, the \r\nForeign Intelligence Surveillance Act of 1978 is amended so that \r\nsections 501, 502, and 105(c)(2) read as they read on October 25, 2001.\r\n\r\nSEC. 4. REPEAL OF SUNSET PROVISION RELATING TO INDIVIDUAL TERRORISTS AS \r\n AGENTS OF FOREIGN POWERS.\r\n\r\n Section 6001 of the Intelligence Reform and Terrorism Prevention Act \r\nof 2004 (Public Law 108458; 118 Stat. 3742) is amended by--\r\n (1) striking subsection (b); and\r\n (2) striking ``(a)'' and all that follows through ``Section'' \r\n and inserting ``Section''.\r\n\r\nSEC. 5. REPEAL OF SUNSET PROVISION RELATING TO SECTION 2332B AND THE \r\n MATERIAL SUPPORT SECTIONS OF TITLE 18, UNITED \r\n STATES CODE.\r\n\r\n Section 6603 of the Intelligence Reform and Terrorism Prevention Act \r\nof 2004 (Public Law 108458; 118 Stat. 3762) is amended by striking \r\nsubsection (g).\r\n\r\nSEC. 6. SHARING OF ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION \r\n UNDER SECTION 203(B) OF THE USA PATRIOT ACT.\r\n\r\n Section 2517(6) of title 18, United States Code, is amended by adding \r\nat the end the following: ``Within a reasonable time after a disclosure \r\nof the contents of a communication under this subsection, an attorney \r\nfor the Government shall file, under seal, a notice with a judge whose \r\norder authorized or approved the interception of that communication, \r\nstating the fact that such contents were disclosed and the departments, \r\nagencies, or entities to which the disclosure was made.''.\r\n\r\nSEC. 7. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES PERSONS \r\n UNDER SECTION 207 OF THE USA PATRIOT ACT.\r\n\r\n (a) Electronic Surveillance.--Section 105(e) of the Foreign \r\nIntelligence Surveillance Act of 1978 (50 U.S.C. 1805(e)) is amended--\r\n (1) in paragraph (1)(B), by striking ``, as defined in \r\n section 101(b)(1)(A)'' and inserting ``who is not a United \r\n States person''; and\r\n (2) in subsection (2)(B), by striking ``as defined in section \r\n 101(b)(1)(A)'' and inserting ``who is not a United States \r\n person''.\r\n (b) Physical Search.--Section 304(d) of such Act (50 U.S.C. 1824(d)) \r\nis amended--\r\n (1) in paragraph (1)(B), by striking ``as defined in section \r\n 101(b)(1)(A)'' and inserting ``who is not a United States \r\n person''; and\r\n (2) in paragraph (2), by striking ``as defined in section \r\n 101(b)(1)(A)'' and inserting ``who is not a United States \r\n person''.\r\n (c) Pen Registers, Trap and Trace Devices.--Section 402(e) of such \r\nAct (50 U.S.C. 1842(e)) is amended--\r\n (1) by striking ``(e) An'' and inserting ``(e)(1) Except as \r\n provided in paragraph (2), an''; and\r\n (2) by adding at the end the following new paragraph:\r\n ``(2) In the case of an application under subsection (c) where the \r\napplicant has certified that the information likely to be obtained is \r\nforeign intelligence information not concerning a United States person, \r\nan order, or an extension of an order, under this section may be for a \r\nperiod not to exceed one year.''.\r\n\r\nSEC. 8. ACCESS TO CERTAIN BUSINESS RECORDS UNDER SECTION 215 OF THE USA \r\n PATRIOT ACT.\r\n\r\n (a) Establishment of Relevance Standard.--Subsection (b)(2) of \r\nsection 501 of the Foreign Intelligence Surveillance Act of 1978 (50 \r\nU.S.C. 1861) is amended by striking ``to obtain'' and all that follows \r\nand inserting ``and that the information likely to be obtained from the \r\ntangible things is reasonably expected to be (A) foreign intelligence \r\ninformation not concerning a United States person, or (B) relevant to \r\nan ongoing investigation to protect against international terrorism or \r\nclandestine intelligence activities.''.\r\n (b) Clarification of Judicial Discretion.--Subsection (c)(1) of such \r\nsection is amended to read as follows:\r\n ``(c)(1) Upon an application made pursuant to this section, if the \r\njudge finds that the application meets the requirements of subsections \r\n(a) and (b), the judge shall enter an ex parte order as requested, or \r\nas modified, approving the release of records.''.\r\n (c) Authority to Disclose to Attorney.--Subsection (d) of such \r\nsection is amended to read as follows:\r\n ``(d)(1) No person shall disclose to any person (other than a \r\nqualified person) that the United States has sought or obtained \r\ntangible things under this section.\r\n ``(2) An order under this section shall notify the person to whom the \r\norder is directed of the nondisclosure requirement under paragraph (1).\r\n ``(3) Any person to whom an order is directed under this section who \r\ndiscloses that the United States has sought to obtain tangible things \r\nunder this section to a qualified person with respect to the order \r\nshall inform such qualified person of the nondisclosure requirement \r\nunder paragraph (1) and that such qualified person is also subject to \r\nsuch nondisclosure requirement.\r\n ``(4) A qualified person shall be subject to any nondisclosure \r\nrequirement applicable to a person to whom an order is directed under \r\nthis section in the same manner as such person.\r\n ``(5) In this subsection, the term `qualified person' means--\r\n ``(A) any person necessary to produce the tangible things \r\n pursuant to an order under this section; or\r\n ``(B) an attorney to obtain legal advice with respect to an \r\n order under this section.''.\r\n (d) Judicial Review.--\r\n (1) Petition review panel.--Section 103 of the Foreign \r\n Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) is \r\n amended by adding at the end the following new subsection:\r\n ``(e)(1) Three judges designated under subsection (a) who reside \r\nwithin 20 miles of the District of Columbia, or if all of such judges \r\nare unavailable, other judges of the court established under subsection \r\n(a) as may be designated by the Presiding Judge of such court (who is \r\ndesignated by the Chief Justice of the United States from among the \r\njudges of the court), shall comprise a petition review panel which \r\nshall have jurisdiction to review petitions filed pursuant to section \r\n501(f)(1).\r\n ``(2) Not later than 60 days after the date of the enactment of the \r\nUSA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, the \r\ncourt established under subsection (a) shall develop and issue \r\nprocedures for the review of petitions filed pursuant to section \r\n501(f)(1) by the panel established under paragraph (1). Such procedures \r\nshall provide that review of a petition shall be conducted ex parte and \r\nin camera and shall also provide for the designation of an Acting \r\nPresiding Judge.''.\r\n (2) Proceedings.--Section 501 of the Foreign Intelligence \r\n Surveillance Act of 1978 (50 U.S.C. 1861) is further amended by \r\n adding at the end the following new subsection:\r\n ``(f)(1) A person receiving an order to produce any tangible thing \r\nunder this section may challenge the legality of that order by filing a \r\npetition in the panel established by section 103(e)(1). The Presiding \r\nJudge shall conduct an initial review of the petition. If the Presiding \r\nJudge determines that the petition is frivolous, the Presiding Judge \r\nshall immediately deny the petition and promptly provide a written \r\nstatement of the reasons for the determination for the record. If the \r\nPresiding Judge determines that the petition is not frivolous, the \r\nPresiding Judge shall immediately assign the petition to one of the \r\njudges serving on such panel. The assigned judge shall promptly \r\nconsider the petition in accordance with procedures developed and \r\nissued pursuant to section 103(e)(2). The judge considering the \r\npetition may modify or set aside the order only if the judge finds that \r\nthe order does not meet the requirements of this section or is \r\notherwise unlawful. If the judge does not modify or set aside the \r\norder, the judge shall immediately affirm the order and order the \r\nrecipient to comply therewith. A petition for review of a decision to \r\naffirm, modify, or set aside an order by the United States or any \r\nperson receiving such order shall be to the court of review established \r\nunder section 103(b), which shall have jurisdiction to consider such \r\npetitions. The court of review shall immediately provide for the record \r\na written statement of the reasons for its decision and, on petition of \r\nthe United States or any person receiving such order for writ of \r\ncertiorari, the record shall be transmitted under seal to the Supreme \r\nCourt, which shall have jurisdiction to review such decision.\r\n ``(2) Judicial proceedings under this subsection shall be concluded \r\nas expeditiously as possible. The judge considering a petition filed \r\nunder this subsection shall provide for the record a written statement \r\nof the reasons for the decision. The record of proceedings, including \r\npetitions filed, orders granted, and statements of reasons for \r\ndecision, shall be maintained under security measures established by \r\nthe Chief Justice of the United States in consultation with the \r\nAttorney General and the Director of National Intelligence.\r\n ``(3) All petitions under this subsection shall be filed under seal, \r\nand the court, upon the government's request, shall review any \r\ngovernment submission, which may include classified information, as \r\nwell as the government's application and related materials, ex parte \r\nand in camera.''.\r\n\r\nSEC. 9. REPORT ON EMERGENCY DISCLOSURES UNDER SECTION 212 OF THE USA \r\n PATRIOT ACT.\r\n\r\n Section 2702 of title 18, United States Code, is amended by adding at \r\nthe end the following:\r\n ``(d) Report.--On an annual basis, the Attorney General shall submit \r\nto the Committees on the Judiciary of the House and the Senate a report \r\ncontaining--\r\n ``(1) the number of accounts from which the Department of \r\n Justice has received voluntary disclosures under subsection \r\n (b)(8); and\r\n ``(2) a summary of the basis for disclosure in those \r\n instances where--\r\n ``(A) voluntary disclosure under subsection (b)(8) \r\n was made to the Department of Justice; and\r\n ``(B) the investigation pertaining to those \r\n disclosures was closed without the filing of criminal \r\n charges.''.\r\n\r\nSEC. 10. SPECIFICITY AND NOTIFICATION FOR ROVING SURVEILLANCE AUTHORITY \r\n UNDER SECTION 206 OF THE USA PATRIOT ACT.\r\n\r\n (a) Inclusion of Specific Facts in Application.--Section 105(c)(2)(B) \r\nof the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. \r\n1805(c)(2)(B)) is amended by striking ``where the Court finds'' and \r\ninserting ``where the Court finds, based upon specific facts provided \r\nin the application,''.\r\n (b) Notification of Surveillance of New Facility or Place.--Section \r\n105(c)(2) of such Act is amended--\r\n (1) in subparagraph (C), by striking ``and'' at the end;\r\n (2) in subparagraph (D), by striking the period at the end \r\n and inserting ``; and''; and\r\n (3) by adding at the end the following new subparagraph:\r\n ``(E) that, in the case of electronic surveillance \r\n directed at a facility or place that is not known at \r\n the time the order is issued, the applicant shall \r\n notify a judge having jurisdiction under section 103 \r\n within 10 days after electronic surveillance begins to \r\n be directed at a new facility or place, and such notice \r\n shall contain a statement of the facts and \r\n circumstances relied upon by the applicant to justify \r\n the belief that the facility or place at which the \r\n electronic surveillance is or was directed is being \r\n used, or is about to be used, by the target of \r\n electronic surveillance.''.\r\n\r\nSEC. 11. PROHIBITION ON PLANNING TERRORIST ATTACKS ON MASS \r\n TRANSPORTATION.\r\n\r\n Section 1993(a) of title 18, United States Code, is amended--\r\n (1) by striking ``or'' at the end of paragraph (7);\r\n (2) by redesignating paragraph (8) as paragraph (9); and\r\n (3) by inserting after paragraph (7) the following:\r\n ``(8) surveils, photographs, videotapes, diagrams, or \r\n otherwise collects information with the intent to plan or \r\n assist in planning any of the acts described in the paragraphs \r\n (1) through (7); or''.\r\n\r\nSEC. 12. ENHANCED REVIEW OF DETENTIONS.\r\n\r\n Section 1001 of the USA PATRIOT ACT is amended by--\r\n (1) inserting ``(A)'' after ``(1)''; and\r\n (2) inserting after ``Department of Justice'' the following: \r\n ``, and (B) review detentions of persons under section 3144 of \r\n title 18, United States Code, including their length, \r\n conditions of access to counsel, frequency of access to \r\n counsel, offense at issue, and frequency of appearance before a \r\n grand jury''.\r\n\r\nSEC. 13. FORFEITURE.\r\n\r\n Section 981(a)(1)(B)(i) of title 18, United States Code, is amended \r\nby inserting ``trafficking in nuclear, chemical, biological, or \r\nradiological weapons technology or material, or'' after ``involves''.\r\n\r\nSEC. 14. ADDING OFFENSES TO THE DEFINITION OF FEDERAL CRIME OF \r\n TERRORISM.\r\n\r\n Section 2332b(g)(5)(B)(i) of title 18, United States Code, is \r\namended--\r\n (1) by inserting ``, 2339D (relating to military-type \r\n training from a foreign terrorist organization)'' before ``, or \r\n 2340A'' ; and\r\n (2) by inserting ``832 (relating to nuclear and weapons of \r\n mass destruction threats),'' after ``831 (relating to nuclear \r\n materials),''.\r\n\r\nSEC. 15. AMENDMENTS TO SECTION 2516(1) OF TITLE 18, UNITED STATES CODE.\r\n\r\n (a) Paragraph (c) Amendment.--Section 2516(1)(c) of title 18, United \r\nStates Code, is amended--\r\n (1) by inserting ``section 37 (relating to violence at \r\n international airports), section 175b (relating to biological \r\n agents or toxins)'' after ``the following sections of this \r\n title:'';\r\n (2) by inserting ``section 832 (relating to nuclear and \r\n weapons of mass destruction threats), section 842 (relating to \r\n explosive materials), section 930 (relating to possession of \r\n weapons in Federal facilities),'' after ``section 751 (relating \r\n to escape),'';\r\n (3) by inserting ``section 1114 (relating to officers and \r\n employees of the United States), section 1116 (relating to \r\n protection of foreign officials), sections 13611363 (relating \r\n to damage to government buildings and communications), section \r\n 1366 (relating to destruction of an energy facility),'' after \r\n ``section 1014 (relating to loans and credit applications \r\n generally; renewals and discounts),'';\r\n (4) by inserting ``section 1993 (relating to terrorist \r\n attacks against mass transportation), sections 2155 and 2156 \r\n (relating to national-defense utilities), sections 2280 and \r\n 2281 (relating to violence against maritime navigation),'' \r\n after ``section 1344 (relating to bank fraud),''; and\r\n (5) by inserting ``section 2340A (relating to torture),'' \r\n after ``section 2321 (relating to trafficking in certain motor \r\n vehicles or motor vehicle parts),''.\r\n (b) Paragraph (p) Amendment.--Section 2516(1)(p) is amended by \r\ninserting ``, section 1028A (relating to aggravated identity theft)'' \r\nafter ``other documents''.\r\n (c) Paragraph (q) Amendment.--Section 2516(1)(q) of title 18, United \r\nStates Code is amended--\r\n (1) by inserting ``2339,'' after ``2332h,''; and\r\n (2) by striking ``or 2339C'' and inserting ``2339C, or \r\n 2339D'' .\r\n\r\nSEC. 16. DEFINITION OF PERIOD OF REASONABLE DELAY UNDER SECTION 213 OF \r\n THE USA PATRIOT ACT.\r\n\r\n Section 3103a(b)(3) of title 18, United States Code, is amended--\r\n (1) by striking ``of its'' and inserting ``, which shall not \r\n be more than 180 days, after its''; and\r\n (2) by inserting ``for additional periods of not more than 90 \r\n days each'' after ``may thereafter be extended''.\r\n\r\n Purpose and Summary\r\n\r\n H.R. 3199, introduced by Chairman F. James Sensenbrenner, \r\nJr., on July 11, 2005, would reauthorize the expiring \r\nprovisions in the USA PATRIOT Act and two provisions in the \r\nIntelligence Reform and Terrorism Prevention Act of 2004 that \r\nwould expire within the next two years, as amended. The bill \r\nextended the sunset for 10 years on two of the provisions that \r\nhad amended the Foreign Intelligence Surveillance Act relating \r\nto Foreign Intelligence Surveillance Court orders for roving \r\nwiretaps and for business records.\r\n H.R. 3199 is based on four years of extensive oversight \r\nconsisting of hearing testimony, Department of Justice \r\nInspector General reports, briefings, and oversight \r\ncorrespondence. Since April of this year alone, this Committee \r\nhas heard testimony from 35 witnesses during 11 hearings on the \r\nUSA PATRIOT Act. That testimony and related oversight has \r\ndemonstrated that the USA PATRIOT Act has been an effective \r\ntool against both terrorists and criminals intent on harming \r\ninnocent people, and therefore deserves to be reauthorized with \r\nsome modifications. H.R. 3199 accomplishes this objective by \r\nreauthorizing provisions set to sunset and making some \r\nimprovements. The bill modifies the following provisions of USA \r\nPATRIOT Act: (1) Section 203(b) to allow for notification to a \r\ncourt that criminal wiretap information has been shared; (2) \r\nsection 206 to clarify when and where law enforcement is \r\nauthorized to use a multi-point or roving wiretap; (3) section \r\n207 to further extend the maximum duration of orders for \r\nelectronic surveillance and physical searches targeted against \r\nall agents of foreign powers who are not U.S. persons; (4) \r\nsection 212 to require an annual report to the House and Senate \r\nJudiciary Committees by the Attorney General, which sets forth \r\nthe number of accounts subject to a section 212 disclosure and \r\na summary of the basis for disclosure in certain circumstances; \r\n(5) section 215 to clarify that the information likely to be \r\nobtained is reasonably expected to: be (A) foreign intelligence \r\ninformation NOT concerning a U.S. person or (B) relevant to an \r\nongoing investigation to protect against international \r\nterrorism or clandestine intelligence activities; (6) section \r\n215 to clarify that a FISA 215 order may be challenged; (7) \r\nsection 215 to clarify that a recipient of a 215 order may \r\nconsult with a lawyer and the appropriate people necessary to \r\nchallenge and comply with the order; (8) section 215 to clarify \r\nthat the order will only be issued ``if the judge finds that \r\nthe requirements have been met;'' (9) section 215 to set up a \r\njudicial review process that authorizes the judge to set aside \r\nor affirm a 215 order that has been challenged. The bill makes \r\npermanent sections 201, 202, 203 (b) and (d), 204, 207, 209, \r\n212, 214, 217, 218, 220, 223, and 225, which were scheduled to \r\nsunset on December 31, 2005, and extends until December 31, \r\n2015 the sunset of sections 206 and 215. In addition, the bill \r\nmakes permanent section 6001 of the Intelligence Reform and \r\nTerrorism Prevention Act (IRTPA), which provides an additional \r\ndefinition for ``Agent of a Foreign Power,'' to cover the \r\n``lone wolf'' under 50 U.S.C. 1801(b)(1). The legislation \r\nrepeals section 6603(g) of the IRTPA, which would sunset \r\nsection 6603, the ``Additions to Offense of Providing Material \r\nSupport to Terrorism''. Finally, H.R. 3199 would enhance \r\nsecurity of mass transportation; Department of Justice \r\nInspector General review, and Judicial and Congressional \r\noversight.\r\n\r\n Background and Need for the Legislation\r\n\r\n The terrorist attacks on the World Trade Center and the \r\nPentagon took more than 3,000 lives, caused billions in \r\neconomic losses, triggered U.S. military intervention in \r\nAfghanistan to topple the Taliban regime, and led to the \r\npassage of the USA PATRIOT Act and other anti-terrorism bills. \r\nAnother example of anti-terror legislation that enhanced law \r\nenforcement authorities and improved information sharing was \r\nthe ``Homeland Security Act of 2002,\\1\\'' which created the \r\nDepartment of Homeland Security. This legislation incorporates \r\nH.R. 4598, the ``Homeland Security Information Sharing Act'' to \r\nfurther improve information sharing with Federal and state and \r\nlocal officials. The Homeland Security Act also updated law \r\nenforcement authorities by including: H.R. 3482 (107th), the \r\n``Cyber Security Enhancement Act of 2002,'' which increased \r\npenalties for cybercrimes and cyberterrorism, and H.R. 4864 \r\n(107th), the ``Anti-Terrorism Explosives Act,'' which \r\nstrengthened penalties for the unlawful possession of explosive \r\nmaterials.\r\n---------------------------------------------------------------------------\r\n \\1\\ Pub. L. No. 107-296.\r\n---------------------------------------------------------------------------\r\n To respond to terrorist threats, Congress also has passed \r\nlegislation to tighten security at America's airports,\\2\\ to \r\nfundamentally reform the Immigration and Naturalization \r\nService,\\3\\ and to enhance border security.\\4\\ Congress also \r\ncreated the National Commission on Terrorist Attacks Upon the \r\nUnited States (the ``9\/11 Commission''), an independent, \r\nbipartisan commission created in 2002 to examine the \r\ncircumstances surrounding the September 11, 2001 terrorist \r\nattacks, including preparedness for and the immediate response \r\nto the attacks. In July 2004, the Commission issued ``The 9\/11 \r\nCommission Report: Final Report of the National Commission on \r\nTerrorists Attacks Upon the United States.'' The 9\/11 \r\nCommission noted that most of the USA PATRIOT Act provisions \r\nare ``relatively noncontroversial, updating America's \r\nsurveillance laws to reflect technological developments in a \r\ndigital age. Some executive actions that have been criticized \r\nare unrelated to the Patriot Act. The provisions in the Act \r\nthat facilitate the sharing of information among intelligence \r\nagencies and between law enforcement and intelligence appear, \r\non balance, to be beneficial. Because of concerns regarding the \r\nshifting balance of power to the government, we think that a \r\nfull and informed debate on the Patriot Act would be healthy.'' \r\n\\5\\\r\n---------------------------------------------------------------------------\r\n \\2\\ Air Transportation Safety and System Stabilization Act, Pub. L. \r\nNo. 107-42, 115 Stat. 230 (2001).\r\n \\3\\ Barbara Jordan Immigration Reform and Accountability Act, 107th \r\nCong. (2002).\r\n \\4\\ Enhanced Border Security and Visa Entry Reform Act of 2002, \r\nPub. L. No. 107-173, 116 Stat. 543 (2002).\r\n \\5\\ The 9\/11 Commission Report: Final Report of the National \r\nCommission on Terrorists Attacks Upon the United States p. 394 (2004).\r\n---------------------------------------------------------------------------\r\n In addition to these legislative initiatives, the House \r\nCommittee on the Judiciary has conducted nearly a 100 hearings \r\nto better protect the American people against terrorist attacks \r\nsince September 11, 2001. Many of those hearings examined \r\nlegislative initiatives that were adopted as part of the \r\n``Intelligence Reform and Terrorism Prevention Act of 2004,'' \r\n\\6\\ which responded to the 9\/11 Commission Report and was \r\nsigned into law on December 17, 2004, and H.R. 418, the ``Real \r\nID Act of 2005,'' which passed the House by a roll call vote of \r\n229 to 198.\\7\\\r\n---------------------------------------------------------------------------\r\n \\6\\ Pub. L. No. 108-458, 118 Stat. 3638 (2004).\r\n \\7\\ Roll no. 27.\r\n---------------------------------------------------------------------------\r\n\r\n1. Congressional Response--the USA PATRIOT Act\r\n\r\n To better equip Federal law enforcement and the \r\nintelligence community with the resources necessary to confront \r\nthese modern threats, Chairman Sensenbrenner introduced H.R. \r\n2975, to ``Provide Appropriate Tools Required to Intercept and \r\nObstruct Terrorism Act of 2001,'' on October 2, 2001. H.R. 2975 \r\nwas reported unanimously by the Judiciary Committee. The House \r\nand Senate combined their versions of the legislation into H.R. \r\n3162, the ``Uniting and Strengthening America by Providing \r\nAppropriate Tools Required to Intercept and Obstruct Terrorism \r\nAct of 2001,'' (USA PATRIOT Act). This legislation incorporated \r\nprovisions of H.R. 3004 (107th), the ``Financial Anti-Terrorism \r\nAct,'' which increased penalties for money laundering and \r\nfinancing terrorist organizations; and H.R. 3160 (107th), the \r\n``Bioterrorism Prevention Act of 2001,'' which provided law \r\nenforcement personnel greater resources to assess and prevent \r\nbiological attacks on American soil. The USA PATRIOT Act was \r\nsigned into law by President Bush on October 26, 2001.\\8\\\r\n---------------------------------------------------------------------------\r\n \\8\\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in \r\nscattered sections of 18 U.S.C. (2003)).\r\n---------------------------------------------------------------------------\r\n The USA PATRIOT Act modernized investigative tools to \r\neffectively fight the advanced technologies used by terrorists \r\nand criminals. The USA PATRIOT Act also greatly improved \r\ninformation sharing between law enforcement and the \r\nintelligence community.\r\n A. Investigative Authorities\r\n The USA PATRIOT Act was designed to assist in the \r\nprevention of future terrorist activities as well as in the \r\nprevention of a broad range of criminal activity that often \r\nfurthers those activities. The law increased penalties for \r\nFederal terrorism offenses and provided for extended post-\r\nincarceration supervised release for persons convicted of such \r\noffenses. The bill strengthened Federal money laundering laws, \r\nadded new terrorism offenses, updated the bioterrorism laws, \r\nfunded first responders, and modified immigration law to \r\nincrease the Federal Government's ability to prevent foreign \r\nterrorists from entering the United States. The Act also \r\nstreamlined and updated the investigative authorities for law \r\nenforcement and the intelligence community.\r\n ``Many of the tools the Act provides to fight terrorism \r\nhave been used for decades to fight organized crime and drug \r\ndealers, and have been reviewed and approved by the courts. As \r\nSen. Joe Biden (D-DE) explained during the floor debate about \r\nthe Act, `the FBI could get a wiretap to investigate the mafia, \r\nbut they could not get one to investigate terrorists. To put it \r\nbluntly, that was crazy! What's good for the mob should be good \r\nfor terrorists.' '' \\9\\\r\n---------------------------------------------------------------------------\r\n \\9\\ http:\/\/www.lifeandliberty.gov\/, citing the (Cong. Rec., 10\/25\/\r\n01).\r\n---------------------------------------------------------------------------\r\n Another example of an authority that was codified in the \r\nAct is the long-standing discretionary authority of Federal \r\njudges to grant law enforcement the authority to use ``roving \r\nwiretaps'' to investigate ordinary crimes, including drug \r\noffenses and racketeering, under Federal criminal law. When a \r\njudge issues a roving wiretap order, law enforcement can apply \r\nthe wiretap to a particular suspect, rather than a particular \r\nphone or communications device. Drug dealers often use a cell \r\nphone, throw it away and use another cell phone, to carry out \r\ntheir illegal activity. Thus, without the authority to use a \r\nroving wiretap law enforcement would not be able to effectively \r\ninvestigate these crimes.\r\n Prior to the enactment of the USA PATRIOT Act, a Federal \r\njudge could issue an order for a wiretap in a national security \r\nor an intelligence investigation similar to a wiretap in a \r\ncriminal case. The law, however, failed to contain authority \r\nsimilar to the criminal law that allowed a Federal judge to \r\nissue a ``roving wiretap'' order in a national security or an \r\nintelligence case. International terrorists and spies are just \r\nas sophisticated as drug dealers and are trained to thwart \r\nsurveillance by rapidly changing locations and communication \r\ndevices such as cell phones. Accordingly, the USA PATRIOT Act \r\nauthorized the courts the discretion to grant agents permission \r\nto use the same techniques in national security investigations \r\nto track terrorists that are used in criminal cases.\\10\\\r\n---------------------------------------------------------------------------\r\n \\10\\ http:\/\/www.lifeandliberty.gov\/.\r\n---------------------------------------------------------------------------\r\n B. Information Sharing\r\n A lack of full, free, and timely information sharing \r\nbetween Federal law enforcement and intelligence agencies had \r\nbeen a problem, long before the 9\/11 attacks. Prior to the 9\/11 \r\nattacks, the Government had made attempts to improve \r\ninformation sharing. For example, different centers, such as \r\nthe National Drug Intelligence Center, have been created to \r\nfocus on sharing information on specific issues. While these \r\ncenters helped, Government-wide improvement was still needed. \r\nThe lack of information sharing stemmed from the distinct \r\nhistorical roles and cultures of law enforcement and the \r\nintelligence community, and from certain legal restrictions.\r\n After the 9\/11 attacks, criticism increased that the \r\nIntelligence Community, especially the CIA and FBI, failed to \r\nshare pertinent intelligence information, and as a result, had \r\nfailed to ``connect the dots'' in a way that might have \r\nuncovered and enabled prevention of the attacks. The criticism \r\nwas twofold: First, collecting agencies had not integrated and \r\nevaluated all the relevant information they had. Second, they \r\nhad failed to ensure that relevant information they had \r\ncollected was shared with other agencies that would need it to \r\nprevent attacks such as those that occurred.\r\n The Administration and the Congress took immediate action \r\nto reduce statutory impediments to sharing appropriate \r\ninformation. First, the USA PATRIOT Act,\\11\\ began to break \r\ndown the barriers to facilitate information sharing between \r\nFederal law enforcement officials and the Intelligence \r\nCommunity. ``The premise of the USA-Patriot Act is that \r\ninformation about foreign terrorists acquired by law \r\nenforcement agencies, including grand jury information, should \r\nbe available to intelligence agencies. Analysts would be able \r\nto put together the larger picture of groups plotting against \r\nU.S. interests.'' \\12\\\r\n---------------------------------------------------------------------------\r\n \\11\\ Pub. L. No. 107-56, 115 Stat. 242.\r\n \\12\\ Richard Best, Intelligence and Law Enforcement: Countering \r\nTransnational Threats to the U.S. CRS Report #RL30252, December 3, \r\n2001, p. 30.\r\n---------------------------------------------------------------------------\r\n As mentioned earlier, H.R. 4598, the ``Homeland Security \r\nInformation Sharing Act'' continued the effort to break down \r\nbarriers by requiring the President to create procedures to \r\nstrip out classified information so that state and local \r\nofficials may receive relevant information without clearances. \r\nH.R. 4598 also incorporated H.R. 3285, the ``Federal-Local \r\nInformation Sharing Partnership Act of 2001,'' to remove the \r\nbarriers for state and local officials to share law enforcement \r\nand intelligence information with Federal officials. H.R. 4598 \r\nwas added to the Homeland Security Act, which became Public Law \r\nNo. 107-296.\r\n\r\n2. Implementation and Use of the USA PATRIOT Act\r\n\r\n Since enactment of the USA PATRIOT Act, the Department of \r\nJustice has used many of the tools authorized in the Act in a \r\ncomprehensive campaign to detect and prosecute those who have \r\ncommitted, or seek to commit, terrorist crimes. For example, as \r\nof the fall of 2004, the Department of Justice has conducted \r\nterrorism investigations that have resulted in the charging of \r\n310 defendants with criminal offenses, of whom 179 have already \r\nbeen convicted. These investigations have led to the discovery \r\nand disruption of over 150 terrorist cells. In addition, the \r\ntools provided by the USA PATRIOT Act have enabled the Federal \r\nGovernment to remove from the United States over 515 \r\nindividuals who were linked to the September 11th \r\ninvestigation. The Federal Government has also been able to \r\nsecure at least 23 convictions or guilty pleas as the result of \r\n70 terrorist financing investigations. Importantly, these \r\nexamples, and all other activities conducted under the \r\nauthorities of the USA PATRIOT Act, have occurred without a \r\nsingle substantiated allegation of civil liberties violations \r\non the part of Department of Justice employees.\\13\\\r\n---------------------------------------------------------------------------\r\n \\13\\ As of the September 13, 2004 Report Congress on the \r\nImplementation of Section 1001 of the USA PATRIOT Act, only one \r\nallegation of civil liberties violations may be related to the use of a \r\nUSA PATRIOT Act provision, and the investigations relating to this \r\nallegation are still underway.\r\n---------------------------------------------------------------------------\r\n A. Oversight Hearings during the 109th Congress\r\n During the 109th Congress, the Committee on the Judiciary \r\nheld 2 Full Committee and 8 Subcommittee oversight hearing on \r\nall of the provisions of USA PATRIOT Act that will expire on \r\nDecember 31, 2005 and several that are not subject to the \r\nsunset.\r\n\r\n FULL COMMITTEE HEARINGS\r\n\r\n1. May 6, 2005, Hearing with Attorney General Gonzales\r\n\r\n On May 6, 2005, Attorney General Gonzales testified before \r\nthe Full Committee on the Judiciary. That hearing focused on \r\nthe use of the law enforcement authorities granted under the \r\nUSA PATRIOT Act; whether these tools have, thus far, proved \r\nuseful to the Government's efforts in fighting terrorism; \r\nwhether existing safeguards have been effective in preventing \r\ncivil liberties violations; and whether modifications to the \r\nAct are needed.\r\n\r\n2. June 8, 2005, Hearing with Deputy Attorney General James B. Comey\r\n\r\n On Wednesday, June 8, 2005, at 10:00 a.m., the Committee on \r\nthe Judiciary held its 11th oversight hearing on the \r\nReauthorization of the USA PATRIOT Act with Deputy Attorney \r\nGeneral James B. Comey testifying on the need to Reauthorize \r\nthe USA PATRIOT Act provisions set to expire on December 31, \r\n2005. This hearing followed the 10 subcommittee hearings and \r\nprovided Members and the Department of Justice the opportunity \r\nto address anyunanswered questions regarding the USA PATRIOT \r\nAct.\r\n\r\n3. June 10, 2005, Hearing continuation of June 8, 2005\r\n\r\n In accordance with House Rule XI, section 2 (J)(1), \r\nadditional witnesses designated by the minority were called to \r\ntestify on the subject of the ``Reauthorization of the USA \r\nPATRIOT Act,'' as an extension (or a continuation) of the \r\nCommittee's June 8, 2005 hearing. The witnesses were: Carlina \r\nTapia-Ruano, American Immigration Lawyers Association; Dr. \r\nJames J. Zogby, Arab American Institute; Deborah Pearlstein, \r\nU.S. Law and Security Program; and Chip Pitts, Amnesty \r\nInternational USA.\r\n\r\n SUBCOMMITTEE HEARINGS\r\n\r\n1. April 19, 2005, Hearing on Sections 203 (b) and (d) of the USA \r\n PATRIOT Act and Their Effect on Information Sharing\r\n\r\n The Subcommittee on Crime, Terrorism, and Homeland Security \r\nof the Committee on the Judiciary held a hearing on sections \r\n203 (b) and (d) that addressed information sharing. These \r\nsections responded to the need to improve information sharing. \r\nFour witnesses--Mr. Barry Sabin, Chief of the Counterterrorism \r\nSection of the Criminal Division of the Department of Justice; \r\nMs. Maureen Baginski, Executive Assistant Director of the FBI \r\nfor Intelligence; Congressman Michael McCaul; and Timothy \r\nEdgar, the National Security Policy Counsel for the American \r\nCivil Liberties Union--testified.\r\n Specifically, section 203 facilitates effective sharing of \r\ninformation collected through the use of criminal wiretaps, \r\ngrand juries, and other criminal investigations, with Executive \r\nBranch officials. To protect privacy, the USA PATRIOT Act: (1) \r\nlimits such disclosures to foreign intelligence and \r\ncounterintelligence information, as defined by statute; (2) \r\nrestricts disclosure to officials with a need to know in \r\nperformance of official duties; and (3) retains the limitations \r\non public or other unauthorized disclosure. Prior to passage of \r\nthe USA PATRIOT Act, the law hampered law enforcement from \r\nsharing information with or receiving information from other \r\ngovernment agencies outside of law enforcement that might \r\nnevertheless relate to terrorist activities or national \r\nsecurity.\r\n Sec. 203(b) deals with information obtained through a \r\ncriminal wiretap. The section amended section 2517 of title 18 \r\nto allow law enforcement officials to share foreign \r\nintelligence or counterintelligence (as defined in section 3 of \r\nthe National Security Act of 1947 (50 U.S.C. 401a)), or foreign \r\nintelligence information (as defined in subsection (19) of \r\nsection 2510 of this title) obtained through a criminal wiretap \r\nwith law enforcement, intelligence, protective, immigration, \r\nnational defense, or national security personnel for use only \r\nas necessary in the conduct of that person's official duties \r\nsubject to any limitations on the unauthorized disclosure of \r\nsuch information. This language was similar to section 103 of \r\nH.R. 2975 that passed the House Judiciary Committee unanimously \r\nin October 2001.\r\n Sec. 203(d) addresses information obtained through a \r\ncriminal investigation. This section permits law enforcement \r\nofficials to share foreign intelligence or counterintelligence \r\n(as defined in section 3 of the National Security Act of 1947 \r\n(50 U.S.C. 401a)), or foreign intelligence information (as \r\ndefined in subsection (19) of section 2510 of this title) \r\nobtained through a criminal investigation, for use only as \r\nnecessary in the conduct of that person's official duties \r\nsubject to any limitations on the unauthorized disclosure of \r\nsuch information. This language was similar to section 154 of \r\nH.R. 2975 that passed the House Judiciary Committee unanimously \r\nin October 2001.\r\n\r\n2. April 21, 2005, Hearing on--Crime, Terrorism, and the Age of \r\n Technology--(Section 209: Seizure of Voice-Mail Messages \r\n Pursuant to Warrants; Section 217: Interception of Computer \r\n Trespasser Communications; and Section 220: Nationwide Service \r\n of Search Warrants for Electronic Evidence)\r\n\r\n The Subcommittee on Crime, Terrorism, and Homeland Security \r\nheld a hearing on section 209, 217, and 220 of the USA PATRIOT \r\nAct. Four witnesses--Laura Parsky, Deputy Assistant Attorney \r\nGeneral of the Criminal Division, U.S. Department of Justice; \r\nSteven M. Martinez, Deputy Assistant Director of the Cyber \r\nDivision, Federal Bureau of Investigation; James X. Dempsey, \r\nExecutive Director of the Center for Democracy and Technology; \r\nand Peter Swire, Professor of Law, Mortiz College of Law, the \r\nOhio State University--testified.\r\n In 1986, Congress enacted the Electronic Communications \r\nPrivacy Act (ECPA) to update the 1968 Wiretap Act, recognizing \r\nthat emerging technologies--such as electronic mail and voice \r\nmail--had rendered the 1968 statute outdated and inadequate. \r\nThese 1986 modifications made the criminal code ``technology \r\nneutral'' to address future telecommunications technologies. \r\n``Technology neutral'' means law enforcement investigative \r\nauthorities remain the same regardless of the technology used \r\nby the criminal to facilitate illegal activity. Thus, law \r\nenforcement uses the same procedures to seek a court order for \r\na wiretap of a computer or a phone used by the criminal.\r\n As expected, cyber technology has advanced rapidly. As a \r\nresult, people communicate quickly and effectively. \r\nUnfortunately, technology has also facilitated crime and \r\nterrorism.\r\n Understanding these problems, the USA PATRIOT Act updated \r\ncriminal law to address these new challenges. These updates \r\nalso were designed to help law enforcement assess whether \r\nunlawful conduct is the result of criminal activity or \r\nterrorist activity and to respond appropriately. Some of these \r\nprovisions are set to expire on December 31, 2005. The April \r\n21, 2005 hearing covered three of those provisions: Sections \r\n209, 217, and 220.\r\n Sec. 209. Seizure of Voice-Mail Messages Pursuant to \r\nWarrants. Section 209 amended 18 U.S.C. Sec. 2703 (a) and (b) \r\nby adding language to cover stored wire communications--such as \r\na voice mail. Section 209 updated the law to clarify that the \r\ncriminal code remains technology-neutral. Section 209 clarified \r\nthat stored voice mail is, in fact, a stored communication, and \r\ntherefore is covered by 18 U.S.C. Sec. 2703. This language is \r\nsimilar to section 102 of H.R. 2975 that passed the House \r\nJudiciary Committee unanimously.\r\n Sec. 217. Interception of Computer Trespasser \r\nCommunications. The courts have long recognized that providers \r\nof communications services possess a ``fundamental right to \r\ntake reasonable measures to protect themselves and their \r\nproperties against the illegal acts of a trespasser.'' Bubis v. \r\nUnited States, 384 F.2d 643, 648 (9th Cir. 1967). Computer \r\nowners, however, often lack the expertise, equipment, or \r\nfinancial resources required to monitor attacks, and thus had \r\nno way to exercise their rights to protect themselves from \r\nunauthorized attackers--who could be terrorists or criminals \r\nengaged in attacking critical infrastructure, or the economy. \r\nPrior to the enactment of the USA PATRIOT Act, the law was \r\nunclear as to whether a victim of computer trespassing was \r\nallowed to request law enforcement assistance in monitoring \r\nunauthorized attacks as they occur.\r\n These attacks come in many forms that cost companies and \r\ncitizens millions of dollars and endanger public safety. For \r\ninstance, denial-of-service attacks, where the objective of the \r\nattack is to disable a computer system, can shut down \r\nbusinesses or emergency responders or national security \r\ncenters. This type of attack causes the target site's servers \r\nto run out of memory, and become incapable of responding to the \r\nqueries of legitimate customers or users. The victims of these \r\ncomputer trespassers should be able to authorize law \r\nenforcement to intercept the trespassers' communications, \r\nsimilar to a store owner who authorizes the police to stop an \r\nintruder. To correct this problem, and help to protect national \r\nsecurity, section 217 of the Act amended the wiretap statute to \r\nallow victims of computer attacks to authorize persons ``acting \r\nunder color of law'' to monitor trespassers on their computer \r\nsystems in a narrow class of cases.\r\n Sec. 220. Nationwide Service of Search Warrants for \r\nElectronic Evidence. Prior to the enactment of the USA PATRIOT \r\nAct, Rule of the Federal Rules of Criminal Procedure of \r\nCriminal Procedure 41 required that the ``warrant'' be obtained \r\n``within the district'' where the property to be searched is \r\nlocated. An investigator, for example, located in Boston who is \r\ninvestigating a suspected terrorist in that city, might have to \r\nseek a suspect's electronic e-mail from an Internet service \r\nprovider (ISP) account located in California. The investigator \r\nwould then need to coordinate with agents, prosecutors, and \r\njudges in the district in California where the ISP is located \r\nto obtain a warrant to search. Time delays caused by the need \r\nto coordinate with numerous parties could be devastating to an \r\ninvestigation, especially where additional criminal or \r\nterrorist acts are planned.\r\n Section 220 of the Act amended 18 U.S.C. Sec. 2703 to \r\nauthorize the court with jurisdiction over the investigation to \r\nissue the warrant directly, without requiring the intervention \r\nof its counterpart in the district where the ISP is located. \r\nBefore and after the USA PATRIOT Act, 18 U.S.C. Sec. 2703(a) \r\nrequires a search warrant to compel service providers to \r\ndisclose unopened e-mails. The USA PATRIOT Act did not affect \r\nthe requirement nor the probable cause standard for a search \r\nwarrant,\\14\\ but rather addresses investigative delays caused \r\nby the cross-jurisdictional nature of the Internet. This \r\nlanguage is similar to section 108 of H.R. 2975 that passed the \r\nHouse Judiciary Committee unanimously.\r\n---------------------------------------------------------------------------\r\n \\14\\ The government must receive court authorization through a \r\nsearch warrant to search or seize property or a person, with limited \r\nexceptions. For a search warrant to be issued, the government must \r\nprovide sworn affidavit to the magistrate that grounds exists or there \r\nis probable cause to believe ground exist--i.e., a crime is or is about \r\nto be committed.\r\n---------------------------------------------------------------------------\r\n\r\n3. April 26, 2005 Hearing--Have Sections 204, 207, 214 and 225 of the \r\n USA PATRIOT Act, and Sections 6001 and 6002 of the Intelligence \r\n Reform and Terrorism Prevention Act of 2004, Improved FISA \r\n Investigations?\r\n\r\n On Tuesday, April 26, 2005, the Subcommittee held a hearing \r\nto examine sections 204, 207, 214, and 225 of the USA PATRIOT \r\nAct, and sections 6001 and 6002 of the Intelligence Reform and \r\nTerrorism Prevention Act of 2004. Three witnesses--the \r\nHonorable Mary Beth Buchanan, United States Attorney for the \r\nWestern District of Pennsylvania; James Baker, Office for \r\nIntelligence Policy and Review, U.S. Department of Justice; and \r\nSuzanne Spaulding, Managing Director, the Harbour Group, LLC--\r\ntestified.\r\n Sec. 204. Clarification of Intelligence Exceptions from \r\nLimitations on Interception and Disclosure of Wire, Oral, and \r\nElectronic Communications (18 U.S.C. 2511(2)(f)). This section \r\namended section 2511(2)(f) of the Federal criminal code, which \r\nprovided that Federal criminal law relating to law enforcement \r\nelectronic surveillance (chapter 119, title 18) and access to \r\nstored communications and communications transactions records \r\n(chapter 121, title 18) did not affect the use of the Foreign \r\nIntelligence Surveillance Act (FISA) for intelligence purposes. \r\nSection 204 is a technical clarification amendment, which added \r\nthat chapter 206 of title 18 is also covered by section \r\n2511(2)(f). Thus, Federal criminal law relating to the use of \r\npen registers and trap and trace devices under chapter 206 did \r\nnot affect the use of FISA for intelligence purposes.\r\n Sec. 207. Duration of FISA Surveillance of Non-United \r\nStates Persons Who Are Agents of a Foreign Power. Prior to \r\nenactment of the USA PATRIOT Act, the government had 90 days to \r\ncarry out surveillance under a FISA court order and 45 days to \r\nconduct a physical search under FISA, before seeking an \r\nextension. Because it often takes longer than these established \r\nperiods to get on the premises or to conduct electronic \r\nsurveillance and the delay in reapplying for an extension or \r\nnew order posed a threat to national security, this provision \r\nadded 30 days to the authorized period for surveillance from 90 \r\ndays to 120 days. It also extended the period for physical \r\nsearches from 45 days to 90 days.\r\n Sec. 214. Pen Register and Trap and Trace Authority Under \r\nFISA. Section 214 of the Act amends 50 U.S.C. Sec. 1842 \r\n(Section 402 of the Foreign Intelligence Surveillance Act of \r\n1978 (FISA)). Section 1842 is the pen register and trap and \r\ntrace provision in the FISA that is modeled after Federal \r\ncriminal law provisions (18 U.S.C. Sec. 3121 et. seq.). A pen \r\nregister gathers out-going telephone or Internet-dialed numbers \r\nand a trap and trace gathers incoming numbers. This is the \r\nleast intrusive method of electronic surveillance. Section 214 \r\namends FISA (the pen register and trap and trace provisions) to \r\nmirror similar provisions that currently exist in criminal law \r\n(18 U.S.C. Sec. 3121 et. seq.). Prior to the enactment of the \r\nUSA PATRIOT Act, the ``pen register and trap and trace'' \r\nprovisions of FISA went beyond the criminal law requirement of \r\ncertification of relevance, and required the Government to \r\nprovide information that demonstrated that the communication \r\ninstrument (e.g., a telephone line) has been or was about to be \r\nused to contact a ``foreign power'' or agent of a foreign \r\npower. This was a greater burden than exists in even a minor \r\ncriminal investigation.\r\n Section 214 clarifies that an application for pen register \r\nand trap and trace authority under FISA will be the same as the \r\npen register and trap and trace authority defined in the \r\ncriminal law. It requires the attorney for the government to \r\ncertify to the court that the information sought is relevant to \r\nan ongoing FISA investigation. The statutory burden under FISA \r\nof having to show that the telephone line has been, or is about \r\nto be used, to contact a foreign power or terrorist is \r\neliminated to conform to the existing and less burdensome \r\ncriminal standards. The attorney for the government still must \r\ncertify the information sought is relevant to an ongoing FISA \r\ninvestigation, which continues to be directed at an agent of a \r\nforeign power. This section codifies lawfulness of court \r\nauthorized pen register and trap and trace device use for non-\r\ncontent communications over telecommunication technology other \r\nthan by telephone.\\15\\ Section 214 of the Act is substantively \r\nsimilar to section 155 of H.R. 2974, the House version that \r\npassed the Judiciary Committee unanimously. Section 214 \r\nincludes protections for U.S. persons, which prohibit the \r\ninvestigation from being conducted based solely on activities \r\nprotected by the First Amendment.\r\n---------------------------------------------------------------------------\r\n \\15\\ 50 U.S.C. 1842.\r\n---------------------------------------------------------------------------\r\n Sec. 225. Immunity for Compliance with FISA Wiretap. While \r\nFederal criminal wiretap law immunizes those who assist law \r\nenforcement in the execution of a criminal wiretap interception \r\norder, 18 U.S.C. 2511(2)(a), this section provides immunity to \r\nanyone who complies with a FISA surveillance (wiretap) order.\r\n Section 6001 of the Intelligence Reform and Terrorism \r\nPrevention Act. Individual Terrorists as Agents of Foreign \r\nPowers. This section amends the definition of ``Agent of a \r\nForeign Power'' under section 50 U.S.C. Sec. 1801(b)(1) (the \r\nForeign Intelligence Surveillance Act of 1978) by adding new \r\nsubparagraph C. Section 1801(b)(1) defined ``Agent of a foreign \r\npower'' for any person other than a United States person, who--\r\n (A) acts in the United States as an officer or \r\n employee of a foreign power, or as a member of a \r\n foreign power as defined in subsection (a)(4) of this \r\n section;\r\n (B) acts for or on behalf of a foreign power which \r\n engages in clandestine intelligence activities in the \r\n United States contrary to the interests of the United \r\n States, when the circumstances of such person's \r\n presence in the United States indicate that such person \r\n may engage in such activities in the United States, or \r\n when such person knowingly aids or abets any person in \r\n the conduct of such activities or knowingly conspires \r\n with any person to engage in such activities;\r\n Section 6001 of the Intelligence Reform and Terrorism \r\n Prevention Act added new subparagraph C to the \r\n definition, which states ``Agent of a foreign power'' \r\n for any person other than a United States person, \r\n includes a person who ``engages in international \r\n terrorism or activities in preparation thereof.'' This \r\n new definition is to reach ``lone wolf'' terrorists who \r\n are non-U.S. persons who engage in international \r\n terrorism, regardless of whether they are affiliated \r\n with an international terrorist group. To address \r\n concerns about the provision, the USA PATRIOT Act \r\n sunset applies and, had H.R. 3199 not removed the \r\n sunset provision, the definition would have expired on \r\n December 31, 2005.\r\n When FISA was enacted in the 1970s, terrorists \r\n usually were members of distinct, hierarchical terror \r\n groups. Today, the ``lone wolfs'' often are not formal \r\n members of any group. Instead, they are part of a \r\n movement, such as a Jihad Against America, and \r\n occasionally act alone. FISA authority was updated to \r\n reflect this new threat.\r\n It should be noted that this section does not change \r\n the requirement for a judicial finding of probable \r\n cause that the target is an agent of a foreign power. \r\n See section 1805(a)(3) and (b). The new definition \r\n requires that for a non-U.S. person to be deemed an \r\n agent of a foreign power, that person must be engaged \r\n in or preparing to engage in international terrorism. \r\n Thus, under the probable cause requirement currently in \r\n law and the new definition in this section, before a \r\n judge can issue a FISA order for surveillance there \r\n must be a showing of probable cause that the person is \r\n engaged or preparing to engage in international \r\n terrorism.\r\n Section 6002 of the Intelligence Reform and Terrorism \r\nPrevention Act. Additional Semiannual Reporting Requirements \r\nUnder the Foreign Intelligence Surveillance Act. The section \r\nalso includes additional reporting requirements to the House \r\nand Senate Judiciary Committees regarding the use of FISA.\r\n\r\n4. April 28, 2005, Hearing--Have Sections 206 and 215 Improved FISA \r\n Investigations?\r\n\r\n On Thursday, April 28, 2005, the Subcommittee held a \r\nhearing to examine sections 206 and 215 of the USA PATRIOT Act. \r\nFour witnesses--the Honorable Kenneth L. Wainstein, U.S. \r\nAttorney for the District of Columbia; James Baker, Office for \r\nIntelligence Policy and Review, U.S. Department of Justice; \r\nRobert Khuzami, former Assistant United States Attorney in the \r\nUnited States Attorney's Office for the Southern District of \r\nNew York; and Greg Nojeim, the Associate Director and Chief \r\nLegislative Counsel of the American Civil Liberties Union's \r\nWashington National Office--testified.\r\n Sec. 206. Roving surveillance authority under the Foreign \r\nIntelligence Surveillance Act of 1978. This section amends \r\n105(c)(2)(B) of the Foreign Intelligence Surveillance Act of \r\n1978 (50 U.S.C. 1805(c)(2)(B)) to update the authority to allow \r\na court to authorize a ``roving wiretap'' ``in circumstances \r\nwhere the Court finds that the actions of the target of the \r\napplication may have the effect of thwarting the identification \r\nof a specified person,'' that a common carrier, landlord, \r\ncustodian, or other person not specified in the Court's order \r\nbe required to furnish the applicant information and technical \r\nassistance necessary to accomplish electronic surveillance in a \r\nmanner that will protect its secrecy and produce a minimum of \r\ninterference with the services that such person is providing to \r\nthe target of electronic surveillance.'' This language was the \r\nsame as the language in section 152 of H.R. 2975 that passed \r\nthe House Judiciary Committee unanimously in the 107th \r\nCongress.\r\n Federal judges have had the discretion for decades to grant \r\nlaw enforcement the authority to use ``roving wiretaps'' to \r\ninvestigate ordinary crimes, including drug offenses and \r\nracketeering, under Federal criminal law. When a judge issues a \r\nroving wiretap order, law enforcement can apply the wiretap to \r\na particular suspect, rather than to a particular phone or \r\ncommunications device.\r\n While international terrorists and spies are just as \r\nsophisticated as drug dealers and are trained to thwart \r\nsurveillance by rapidly changing locations and communication \r\ndevices such as cell phones, the law prior to the USA PATRIOT \r\nAct did not contain authority similar to the criminal law that \r\nallowed a Federal judge to issue a ``roving wiretap'' order in \r\na national security or intelligence case. As a result, the \r\nGovernment had to return to the FISA court for an order that \r\nnamed the new carrier, landlord, etc., before effecting \r\nsurveillance each time the terrorist or spy threw away his or \r\nher cell phone and used a different cell phone. Under section \r\n206 of the USA PATRIOT Act, the FBI presents the newly \r\ndiscovered carrier, landlord, custodian, or other person with a \r\ngeneric order issued by the court, and the FBI can then effect \r\nFISA coverage as soon as it is technically feasible.\r\n Sec. 215. Access to Records and Other Items Under the \r\nForeign Intelligence Surveillance Act. Prior and subsequent to \r\nenactment of the USA PATRIOT Act, law enforcement could obtain \r\nrecords from all manner of businesses through grand jury-issued \r\nsubpoenas. Targets of grand jury investigations do not have \r\nstanding to challenge a grand jury subpoena directed at a third \r\nparty. This access includes libraries and bookstores, for \r\nrecords relevant to criminal inquiries. For example, in the \r\n1997 Gianni Versace murder case, a Florida grand jury \r\nsubpoenaed records from public libraries in Miami Beach. In the \r\n1990 Zodiac gunman investigation, a grand jury in Queens, New \r\nYork, subpoenaed records from the library at Fifth Avenue and \r\n42d Street in Manhattan. Investigators believed that the gunman \r\nwas inspired by a Scottish occult poet, and wanted to learn who \r\nhad checked out his books. Section 215 of the USA PATRIOT Act \r\ncreated similar authority, but with more stringent \r\nrequirements. Section 215 provides the FISA court discretion to \r\nissue an order for business records related to ``international \r\nterrorism and clandestine intelligence activities.'' These \r\njudicial orders conceivably could be issued to bookstores or \r\nlibraries, but section 215 does not single them out. Section \r\n215 has a very narrow scope that can only be used: (1) ``to \r\nobtain foreign intelligence information not concerning a United \r\nStates person''; or (2) ``to protect against international \r\nterrorism or clandestine intelligence activities.'' 50 U.S.C. \r\nSec. 1861(b)(2).\r\n FBI agents cannot obtain records under section 215 \r\n unless they receive a court order. Grand jury \r\n subpoenas, by contrast, do not require judicial \r\n approval. Agents cannot use section 215 to unilaterally \r\n compel libraries or any other entity to turn over their \r\n records. Agents must obtain such documents only by \r\n appearing before the FISA court and convincing the \r\n court that these business records are needed. See 50 \r\n U.S.C. Sec. 1861(b). Section 215 goes to great lengths \r\n to preserve the First Amendment rights of libraries, \r\n their patrons, and other affected entities. It \r\n expressly provides that the FBI cannot conduct \r\n investigations ``of a United States person solely on \r\n the basis of activities protected by the first \r\n amendment to the Constitution of the United States.'' \r\n 50 U.S.C. Sec. 1861(a)(2).\r\n Section 215 provides for thorough congressional \r\n oversight. Every six months, the Attorney General is \r\n required to ``fully inform'' Congress on the number of \r\n times agents have sought a court order under section \r\n 215, as well as the number of times such requests were \r\n granted, modified, or denied. See 50 U.S.C. Sec. 1862.\r\n On April 28, 2005, the United States Attorney for the \r\nDistrict of Columbia testified that some of the 9\/11 hijackers \r\nused libraries in the United States. He stated:\r\n Investigators have received information that \r\n individuals believed to be 9\/11 hijackers Wail \r\n Alshehri, Waleed Alshehri, and Marwan Al-Shehhi visited \r\n the Del Ray Public Library in Del Ray Beach, Florida. \r\n Wail Alshehri and Waleed Alshehri entered the library \r\n one afternoon in July of 2001, and asked to use the \r\n library's computers to access the Internet. After about \r\n an hour a third man, Marwan Al-Shehhi, joined the two. \r\n Waleed and Wail Alshehri were hijackers aboard American \r\n Airlines Flight 11, while Al-Shehhi was the pilot who \r\n took control of United Airlines Flight 175, both of \r\n those flights crashed into the World Trade Center on \r\n September 11th. * * * In addition, investigators \r\n tracing the activities of the hijackers determined that \r\n on four occasions in August of 2001, individuals using \r\n Internet accounts registered to Nawaf Alhazmi and \r\n Khalid Almihdhar, 9\/11 hijackers, used public access \r\n computers in the library of a state college in New \r\n Jersey. The computers in the library were used to \r\n review and order airline tickets on an Internet travel \r\n reservations site. Alhazmi and Almihdhar were hijackers \r\n aboard American Airlines Flight 77, which took off from \r\n Dulles Airport and crashed into the Pentagon. The last \r\n documented visit to the library occurred on August \r\n 30th, 2001. On that occasion, records indicate that a \r\n person using Alhazmi's account used the library's \r\n computer to review September 11th reservations that had \r\n been previously booked.''\r\n On April 6, 2005 the Attorney General testified before the \r\nHouse Committee on the Judiciary and stated that the FISA court \r\nhas granted the Department's request for a 215 order 35 times \r\nas of March 30, 2005. He went on to state that the Department \r\nhas not sought a section 215 order to obtain library or book \r\nstore records, medical records, or gun sale records. He also \r\nexplained that the provision to date has been used only to \r\nobtain driver's license records, public accommodation records, \r\napartment leasing records, credit card records, and subscriber \r\ninformation, such as names and addresses, for telephone numbers \r\ncaptured through court-authorized pen-register devices.\r\n\r\n5. April 28, 2005, Hearing--Section 218 of the USA PATRIOT Act--If it \r\n Expires Will the ``Wall'' Return?\r\n\r\n On Thursday, April 28, 2005, the Subcommittee held a \r\nhearing, which focused on section 218 of the USA PATRIOT Act. \r\nSome have argued that Section 218 contributed to lowering the \r\n``Wall,'' and is set to expire on December 31, 2005. The \r\n``Wall'' is a metaphorical term that described the legal and \r\nadministrative constraints created to separate the operations \r\nof law enforcement and the intelligence community. Four \r\nwitnesses--the Honorable Patrick Fitzgerald, U.S. Attorney for \r\nthe Northern District of Illinois; David Kris, former Associate \r\nDeputy Attorney General for the Department of Justice; Kate \r\nMartin, Director of the Center for National Security Studies; \r\nand Peter Swire, Professor of Law at Ohio State University--\r\ntestified.\r\n Section 218 amended 50 U.S.C. Sec. 1804(a)(7)(B) and \r\n1823(a)(7)(B) (the Foreign Intelligence Surveillance Act) to \r\nimprove information sharing between law enforcement and the \r\nintelligence community. The Foreign Intelligence Surveillance \r\nAct limited surveillance and physical search orders to \r\ninstances where authorities certified that ``the purpose'' of \r\nthe order was for foreign intelligence gathering; subsequent \r\ncase law raised a question of whether it was sufficient to meet \r\n``the purpose'' requirement that foreign intelligence gathering \r\nwas ``the primary purpose'' or whether ``the purpose'' \r\nrequirement could be satisfied perhaps when a criminal \r\ninvestigation was not the primary purpose, 743 F.2d 59; 952 \r\nF.2d 565. Section 218 makes it clear that foreign intelligence \r\ngathering must be ``a significant'' reason for a FISA \r\napplication, but need not be the primary purpose, as the courts \r\nhad interpreted the law to mean.\\16\\ Section 218 of the USA \r\nPATRIOT Act has helped to lower the ``Wall'' that prevented \r\nsharing of information between law enforcement and the \r\nintelligence community. This section is subject to the December \r\n31, 2005 sunset.\r\n---------------------------------------------------------------------------\r\n \\16\\ In re: Sealed Case No. 02-001, FIS Ct. Rev., No. 02-001, 11\/\r\n18\/02, reversing 71 CrL 615.\r\n---------------------------------------------------------------------------\r\n\r\n6. May 3, 2005, Oversight Hearing on Sections 201, 202, 213, and 223 of \r\n the USA PATRIOT Act and Their Effect on Law Enforcement \r\n Surveillance\r\n\r\n On Tuesday, May 3, 2005, the Subcommittee on Crime, \r\nTerrorism, and Homeland Security for the Committee held a \r\nhearing on the USA PATRIOT Act. The hearing focused on the \r\neffect of sections 201, 202, 213, and 223 on law enforcement \r\nsurveillance. Although section 213 does not sunset, the \r\nCommittee reviewed this section of the USA PATRIOT Act to \r\naccommodate a request of the Minority. Section 213 covers \r\ndelayed notice search warrants. Four witnesses--the Honorable \r\nMichael J. Sullivan, U.S. Attorney for the District of \r\nMassachusetts; Chuck Rosenberg, Chief of Staff to the Deputy \r\nAttorney General; Heather MacDonald, John M. Olin Fellow at the \r\nManhattan Institute; and the Honorable Bob Barr, former \r\nRepresentative of Georgia's Seventh District--testified.\r\n This hearing examined sections 201, 202, and 203 of the USA \r\nPATRIOT Act that relate to criminal wiretaps and section 213 \r\nthat relates to when notice is provided for certain criminal \r\nsearch warrants. Sections 201, 202, and 223 expire on December \r\n31, 2005. Section 213 does not sunset.\r\n A. The Wiretap Provisions Set To Expire\r\n 1. Criminal Wiretap Authority Before the USA PATRIOT Act\r\n ``Title III of the Omnibus Crime Control and Safe Streets \r\nAct of 1968, 18 U.S.C. Sec. Sec. 2510-2522 (1994 & Supp. II \r\n1996), requires the government, unless otherwise permitted, to \r\nobtain an order of a court before conducting electronic \r\nsurveillance. The government is permitted to seek such orders \r\nonly in connection with the investigation of the criminal \r\noffenses enumerated in section 2516 of title 18.'' \\17\\\r\n---------------------------------------------------------------------------\r\n \\17\\ October 17, 2000, Memorandum for the Counsel, Office of \r\nIntelligence Policy and Review, U.S. DOJ.\r\n---------------------------------------------------------------------------\r\n For Federal investigations, section 2516 distinguishes \r\nbetween wire (i.e., telephone) and oral (i.e., face-to-face \r\nconversation) communications, and electronic communications \r\n(i.e., conversation using a computer). The USA PATRIOT Act did \r\nnot change these distinctions.\r\n For wire and oral communications, section \r\n 2516(1) allows designated senior officials in the \r\n Department of Justice to authorize an application for a \r\n court order to approve interception of wire and oral \r\n communications where the interception may provide \r\n evidence of certain Federal offenses known as ``wiretap \r\n predicates.'' Wiretap predicates are enumerated crimes \r\n for which Congress has authorized law enforcement to \r\n use a wiretap over a wire or when oral communications \r\n occur.\r\n For wiretapping electronic communications, \r\n Congress authorized Federal investigators, under 18 \r\n U.S.C. Sec. 2516(3), to apply for a court order for \r\n interception of electronic communications where the \r\n interception may provide evidence of any Federal \r\n felony.\r\n 2. Wiretap Authority as amended by the USA PATRIOT Act\r\n The USA PATRIOT Act added to the wiretap predicates under \r\nsections 201 and 202, and added safeguards under section 223 \r\ndesigned to prohibit the unauthorized disclosure of information \r\nobtained under the Government's updated surveillance authority.\r\n Sec. 201. Terrorism as a predicate act for authorization of \r\nwiretaps. This section added new ``wiretap predicates'' under \r\nsection 2516 of title 18 of the Federal criminal code that \r\nrelate to crimes of terrorism. Section 201 provides the courts \r\ndiscretion to grant a wiretap for the interception of wire, \r\noral, or electronic communications in the investigation of: (1) \r\npossible crimes relating to chemical weapons under 18 U.S.C. \r\nSec. 229 and (2) possible crimes relating to terrorism under 18 \r\nU.S.C. Sec. Sec. 2332, 2332a, 2332b, 2332d, 2339A, or 2339B. \r\nWhile some crimes involving terrorism were already wiretap \r\npredicates, others were not. The USA PATRIOT Act closed the gap \r\nwith respect to the use of this key investigative tool that \r\nsignificantly enhances law enforcement ability to prevent a \r\nterrorist attack and prosecute crimes connected with it. Such \r\nauthority already existed for a number of other less serious \r\ncrimes, such as trafficking automobile parts. Prior to the \r\nenactment of the USA PATRIOT Act, law enforcement could already \r\nconduct wiretaps on electronic communications under section \r\n2516(3) for these felonies. The USA PATRIOT Act changed the law \r\nto now permit wiretaps on wire and oral communications as well.\r\n Sec. 202. Authority to intercept wire, oral, and electronic \r\ncommunications relating to computer fraud and abuse. This \r\nsection adds a new ``wiretap predicate'' under section 2516 of \r\ntitle 18 of the Federal criminal code for serious computer \r\nhacking offenses, including cyberterrorism. Specifically, the \r\nwiretap predicate is for crimes under section 1030 of title 18 \r\nwhen the violation is a felony that relates to computer fraud \r\nand abuse. Prior to the USA PATRIOT Act, law enforcement could \r\nalready conduct wiretaps on electronic communications under \r\nsection 2516(3) for such felonies. The USA PATRIOT Act changed \r\nthe law to now also permit wiretaps on wire and oral \r\ncommunications.\r\n 3. Wiretap Authority that Remained Unchanged by the USA \r\n PATRIOT Act\r\n Sections 201 and 202 of the USA PATRIOT Act in no way \r\nchange the strict limitations on how wiretaps may be used. \r\nCongress enacted Title III of the Omnibus Crime Control and \r\nSafe Streets Act of 1968 \\18\\ that outlines what is and is not \r\npermissible with regard to wiretapping and electronic \r\neavesdropping.\\19\\ Title III restrictions go beyond Fourth \r\nAmendment constitutional protections and include a statutory \r\nsuppression rule to exclude evidence that was collected in \r\nviolation of Title III.\\20\\ Except under limited circumstances, \r\nit is unlawful to intercept oral, wire, and electronic \r\ncommunications.\\21\\ Accordingly, under the Act, Federal and \r\nstate law enforcement may only use wiretaps under strict \r\nlimitations.\\22\\ Congress created these procedures to allow \r\nlimited law enforcement access to private communications and \r\ncommunication records for investigations consistent with Fourth \r\nAmendment rights. Title 18 U.S.C. Sec. 2518 sets strict \r\nprocedures for the use of a wiretap. Section 2518(1) requires \r\nthe application to be made under written oath or affirmation to \r\na judge of competent jurisdiction. Section 2518(1)(b) requires \r\nthat the application set forth, among other things, ``a full \r\nand complete statement of the facts and circumstances relied \r\nupon by the applicant, to justify his belief that an order \r\nshould be issued. . . .'' These facts should include, among \r\nother things, the ``details as to the particular offense that \r\nhas been, is being, or is about to be committed'' and ``the \r\nidentity of the person, if known, committing the offense and \r\nwhose communications are to be intercepted.'' \\23\\ Section \r\n2518(3) also includes requirements that for the judge to issue \r\na wiretap order the judge must believe (1) there is probable \r\ncause for belief that an individual is committing, has \r\ncommitted, or is about to commit a particular offense \r\nenumerated in section 2516 of [title 18]; (2) there is probable \r\ncause for belief that particular communications concerning that \r\noffense will be obtained through such interception; and (3) \r\nnormal investigative procedures have been tried and have failed \r\nor reasonably appear to be unlikely to succeed if tried or to \r\nbe too dangerous.\\24\\ To further protect privacy, law \r\nenforcement is required ``to minimize the interception of \r\ncommunications not otherwise subject to interception [that is, \r\nnoncriminal conversations] under this chapter, and must \r\nterminate upon attainment of the authorized objective.'' \\25\\\r\n---------------------------------------------------------------------------\r\n \\18\\ Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 \r\n(1968)(codified as amended at 18 U.S.C. Sec. Sec. 2510-2520 (1970).\r\n \\19\\ Charles Doyle & Gina Stevens, Congressional Research Service, \r\nLibrary of Congress, Privacy: An Overview of Federal Statutes Governing \r\nWiretapping and Electronic Eavesdropping, at 6 (2001).\r\n \\20\\ 87 Stat. 197, 18 U.S.C. Sec. Sec. 2510-2520 (1970 ed.).\r\n \\21\\ 18 U.S.C. Sec. 2511.\r\n \\22\\ 18 U.S.C. Sec. 2518.\r\n \\23\\ 18 U.S.C. Sec. 2518(1)(b).\r\n \\24\\ 18 U.S.C. Sec. 2518 (emphasis added).\r\n \\25\\ 18 U.S.C. Sec. 2518(5).\r\n---------------------------------------------------------------------------\r\n Sec. 223. Civil Liability for Certain Unauthorized \r\nDisclosures. This section is similar to section 161 of H.R. \r\n2975 that passed the House Judiciary Committee unanimously. \r\nSection 223 includes safeguards designed to prevent the \r\nunauthorized disclosure of information obtained under the \r\nGovernment's updated surveillance authority, by amending the \r\ncriminal code to provide for administrative discipline of \r\nFederal officers or employees, as well as by allowing for civil \r\nactions to be brought against the United States for damages by \r\nany person aggrieved by such disclosures.\r\n B. Delayed Notice\r\n 1. Pre-existing Authority for Delayed Notice\r\n Contrary to reports, the USA PATRIOT Act did not create \r\ndelayed notice search warrants. Delayed notice search warrants \r\nhave been used for decades prior to enactment of the USA \r\nPATRIOT Act. In 1979, the U.S. Supreme Court expressly held in \r\nDalia v. United States that the Fourth Amendment does not \r\nrequire law enforcement to give immediate notice of the \r\nexecution of a search warrant.\\26\\ The Department of Justice \r\nstates that three Federal Courts of Appeals had considered the \r\nconstitutionality of delayed-notice search warrants since 1979 \r\nand upheld their constitutionality.\\27\\\r\n---------------------------------------------------------------------------\r\n \\26\\ See Dalia v. United States, 441 U.S. 238 (1979); see also Katz \r\nv. United States, 389 U.S. 347 (1967).\r\n \\27\\ April 4, 2005 U.S. Department of Justice letter to Senator \r\nSpector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th \r\nCir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); \r\nUnited States v. Simons, 206 F.3d 392 (4th Cir. 2000).\r\n---------------------------------------------------------------------------\r\n 2. What Delayed Notice Means\r\n A delayed notice search warrant simply means that a court \r\nhas expressly authorized investigators to delay notifying a \r\nsuspect that a search warrant has been executed (i.e., a court-\r\nordered search has occurred). The search warrant is the same, \r\nregardless of when the suspect receives notice. Thus, before a \r\nsearch warrant is issued, whether notice is delayed or not, a \r\nFederal judge must find that there is probable cause to believe \r\nthe property to be searched or seized constitutes evidence of a \r\ncriminal offense.\r\n 3. Section 213 Creates a Uniform Nationwide Standard for a \r\n Court To Authorize Delayed Notice\r\n Congress included section 213 in the USA PATRIOT Act to \r\ncreate a uniform nationwide standard for the issuance of these \r\nwarrants. Under section 213 there are limited circumstances \r\nwhen a court may delay notice. These circumstances are the same \r\npredicate circumstances permitted in an application for \r\ndelaying notice in a search warrant for stored communications \r\nunder section 2705(a)(2) of title 18, which predated the USA \r\nPATRIOT Act. For a court to permit a delay in the notice of a \r\nsearch of a suspect's property, the investigator or prosecutor \r\nmust show that there is reasonable cause to believe that if the \r\nsuspect is notified at the same time as the search one of the \r\nfollowing situations may occur:\r\n Notification would endanger the life or \r\n physical safety of an individual;\r\n Notification would cause flight from \r\n prosecution;\r\n Notification would result in destruction of, \r\n or tampering with, evidence;\r\n Notification would result in intimidation of \r\n potential witnesses; or\r\n Notification would cause serious jeopardy to \r\n an investigation or unduly delay a trial.\r\n 4. Notification Required Within a Reasonable Period of Time\r\n The subject of the search must be notified within a \r\nreasonable period of time as determined by the court. Congress \r\nretained discretion for the courts to review the facts and \r\ndetermine what a reasonable period time is to delay the notice, \r\nas that is necessarily dependent upon the facts of each case. \r\nAccording to the Department of Justice, the shortest period of \r\ntime for which the Government has requested delayed-notice for \r\na search warrant is 7 days and the longest is 180 days. This \r\nfigure is from a survey of the 94 U.S. Attorneys' Offices for a \r\nperiod between April 1, 2003, and January 31, 2005.\r\n In an April 4, 2005, letter to Senator Specter, the \r\nDepartment of Justice provided statistics on the number of \r\nsearch warrants granted and the number of those for which \r\ndelayed notice was sought and granted:\r\n 32,529 search warrants were handled by U.S. \r\n District Courts during a 12-month period ending \r\n September 30, 2003, according to the Administrative \r\n Office of the U.S. Courts.\r\n 61 search warrants had delayed notice in a \r\n comparable 14-month period--between April 2003, and \r\n July 2004, according to a Department survey of the U.S. \r\n Attorney Offices.\r\n When comparing the two periods, delayed \r\n notice under section 213 was granted for only 0.2 \r\n percent of the total search warrants handled by the \r\n courts.\r\n 155 search warrants had delayed notice in \r\n the period from enactment of the USA PATRIOT Act on \r\n October 26, 2001 through January 31, 2005--a period of \r\n more than three years.\r\n Assuming that the number of search warrants \r\n was the same for three years, the number would be 0.15 \r\n percent of the total search warrants handled by the \r\n courts.\r\n Of the 98 U.S. Attorneys' Offices, 48 \r\n Offices never used a delayed notice search warrant \r\n under section 213 and only 40 Offices--less than half \r\n of the total number of U.S. Attorneys' Offices--used a \r\n delayed notice search warrant under any authority.\r\n Of the 40 Offices that used section 213, 17 \r\n used section 213 only once.\r\n\r\n7. Tuesday, May 5, 2005--Oversight Hearing on Section 212 of the USA \r\n PATRIOT Act That Allows Emergency Disclosure of Electronic \r\n Communications To Protect Life and Limb\r\n\r\n On Thursday, May 5, 2005, the Subcommittee held a hearing \r\non section 212 of the USA 1PATRIOT Act. Section 212 of the USA \r\nPATRIOT Act allows computer-service providers to disclose \r\nelectronic communications in life-threatening emergencies to \r\nlaw enforcement and is scheduled to expire on December 31, \r\n2005.\r\n Four witnesses--the Honorable William Moschella, Assistant \r\nAttorney General, Office of Legislative Affairs, U.S. \r\nDepartment of Justice; Willie Hulon, Assistant Director of the \r\nCounterterrorism Division, Federal Bureau of Investigation; \r\nProfessor Orrin Kerr, Professor of Law at the George Washington \r\nUniversity Law School; and James X. Dempsey, Executive Director \r\nof the Center for Democracy and Technology as the witness for \r\nthe Minority--testified.\r\n This hearing examined section 212 of the USA PATRIOT Act \r\nthat allows computer-service providers to disclose information \r\nunder emergencies that threaten life or limb. To understand the \r\neffect of section 212, following is an explanation of the \r\nprohibitions for disclosing stored electronic communications \r\nthat existed before and exist after enactment of the USA \r\nPATRIOT Act. The 1986 Electronic Communications Privacy Act \r\n(ECPA) to authorize Government access to e-mail and other \r\nelectronic communications ``in storage.'' Section 2701(a) of \r\nthat chapter makes it a Federal offense to unlawfully access \r\nstored communications. Subsection (c) of 18 U.S.C. Sec. 2701 \r\nprovides exceptions to the prohibitions in (a). Those \r\nexceptions include conduct authorized by the person or entity \r\nproviding a wire or electronic communications service; conduct \r\nauthorized by a user of that service with respect to a \r\ncommunication of or intended for that user; and exceptions \r\ndescribed in sections 2702, 2703, 2704, and 2518 of title 18.\r\n Subsection 2702(a) restricts voluntary disclosure of \r\ncustomer communications or records, unless the disclosure falls \r\nunder one of the specified exceptions in subsections 2702(b) or \r\n2702(c). Subsection 2702(b) provides exceptions for disclosure \r\nof the contents of a communication. Subsection 2702(c) provides \r\nexceptions for the disclosure of customer records. Under \r\nsection 2702(c) a provider covered by subsection 2702(a) may \r\ndivulge a record or other information pertaining to a \r\nsubscriber to or customer of such service that does not include \r\nthe contents of communications covered by subsections \r\n2701(a)(1) or (a)(2).\r\n Section 2703 provides the standards for Government access \r\nto electronic communications in storage. Section 2703(a) \r\nrequires a search warrant to compel service providers to \r\ndisclose unopened e-mails.\r\n Sec. 212. Emergency Disclosure of Electronic Communications \r\nto Protect Life and Limb. Section 212 of the USA PATRIOT Act \r\namended sections 2702 and 2703 of title 18. Prior to enactment \r\nof the USA PATRIOT Act, there were two basic problems with the \r\ndisclosure rules for stored electronic communications. First, \r\nthe law contained no provision allowing electronic \r\ncommunications service providers to voluntarily disclose \r\ncommunications when necessary to protect life and limb. Thus, \r\n``for example, an Internet service provider (``ISP'') \r\nindependently learned that one of its customers was part of a \r\nconspiracy to commit an imminent terrorist attack, prompt \r\ndisclosure of the account information to law enforcement could \r\nsave lives. Since providing this information did not fall \r\nwithin one of the statutory exceptions, however, an ISP making \r\nsuch a disclosure could be sued civilly.'' \\28\\\r\n---------------------------------------------------------------------------\r\n \\28\\ Field Guidance on New Authorities That Relate to Computer \r\nCrime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, \r\nComputer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of \r\nJustice.\r\n---------------------------------------------------------------------------\r\n Second, while the law allowed communications service \r\nproviders to protect their rights and property by disclosing \r\nstored communications that contained content, the law did not \r\nallow them to disclose communications that contained ``non-\r\ncontent'' records for such protection. Allowing providers to \r\ndisclose content, but not non-content communications, to \r\nprotect their rights and property had, according to the \r\nDepartment of Justice, substantially hindered providers' \r\nability to protect themselves from cyber-terrorists and \r\ncriminals.\r\n The USA PATRIOT Act addresses both issues. To resolve the \r\nfirst problem addressing life and limb emergencies, section 212 \r\namends subsection 2702(b) to authorize communications service \r\nproviders to voluntarily disclose the stored ``content'' and \r\n``non-content'' communications of their customers or \r\nsubscribers if the provider reasonably believes that an \r\nemergency involving immediate danger of death or serious \r\nphysical injury to any person requires disclosure of the \r\ninformation without delay. This language was later amended in \r\n2002 under the ``Cyber Security Enhancement Act,'' which was \r\nintroduced by Mr. Lamar Smith, then Chairman of the \r\nSubcommittee on Crime, Terrorism, and Homeland Security.\\29\\\r\n---------------------------------------------------------------------------\r\n \\29\\ The Cyber Security Enhancement Act was incorporated into the \r\nHomeland Security Act of 2002.\r\n---------------------------------------------------------------------------\r\n The Cyber Security Enhancement Act contains a section that \r\nmade a conforming amendment to the USA PATRIOT Act to allow \r\ncommunications services providers to disclose communications to \r\ngovernment entities in emergency situations where the provider \r\nin good faith believes that there is a danger of death or \r\nphysical injury. For customer communications, the USA PATRIOT \r\nAct creates an exception that allows emergency disclosures to \r\n``law enforcement,'' when the provider reasonably believes \r\nthere was immediate danger. For customer records, however, the \r\nUSA PATRIOT Act creates a broader exception allowing disclosure \r\nof such records to ``a governmental entity.'' This section \r\nchanges the emergency exception for disclosing customer \r\ncommunications to include other Government agencies, such as \r\nemergency response personnel, health officials, and the \r\nDepartment of Defense. Thus, the provider could contact, for \r\ninstance, the Centers for Disease Control as well as law \r\nenforcement. It should be noted that section 212 does not \r\nimpose an affirmative obligation to review customer \r\ncommunications in search of such imminent dangers.\r\n As to the second problem regarding property rights of the \r\ncommunications services provider, section 212 amends the law to \r\nallow communications services providers to disclose non-content \r\ninformation (such as the subscriber's login records). ``It \r\naccomplishes this change by two related sets of amendments. \r\nFirst, amendments to sections 2702 and 2703 of title 18 \r\nsimplify the treatment of voluntary disclosures by providers by \r\nmoving all such provisions to 2702. Thus, section 2702 now \r\nregulates all permissive disclosures (of content and non-\r\ncontent records alike), while section 2703 covers only \r\ncompulsory disclosures by providers. Second, an amendment to \r\nnew subsection 2702(c)(3) clarifies that service providers do \r\nhave the statutory authority to disclose non-content records to \r\nprotect their rights and property. All of these changes will \r\nsunset December 31, 2005.'' \\30\\\r\n---------------------------------------------------------------------------\r\n \\30\\ Field Guidance on New Authorities That Relate to Computer \r\nCrime and Electronic Evidence Enacted in the USA PATRIOT Act of 2001, \r\nComputer Crime and Intellectual Property Section (CCIPS), U.S. Dept. of \r\nJustice.\r\n---------------------------------------------------------------------------\r\n\r\n8. Tuesday, May 10, 2005, Oversight Hearing on the Prohibition of \r\n Material Support to Terrorists and Foreign Terrorist \r\n Organizations and on the DOJ Inspector General's Report on \r\n Civil Liberty Violations Under the USA PATRIOT Act\r\n\r\n On Tuesday, May 10, 2005, the Subcommittee on Crime, \r\nTerrorism, and Homeland Security for the Committee on the \r\nJudiciary held a hearing on the USA PATRIOT Act. This hearing \r\nexamined the prohibition of material support to terrorists and \r\nforeign terrorist organizations and the requirement of the \r\nDepartment of Justice Inspector General (IG) to report every \r\nsix months on any violations of civil liberties. Four \r\nwitnesses--the Honorable Glenn Fine, Inspector General of the \r\nDepartment of Justice; the Honorable Gregory G. Katsas, Deputy \r\nAssistant Attorney General, Civil Division of the Department of \r\nJustice; Mr. Barry Sabin, Chief of the Counterterrorism Section \r\nof the Criminal Division of the Department of Justice; and \r\nAhilan Arulanantham, Staff Attorney for the American Civil \r\nLiberties Union of Southern California--testified.\r\n The hearing focused on section 805(a)(2)(B) of the USA \r\nPATRIOT Act as amended by section 6603 of the Intelligence \r\nReform and Terrorism Prevention Act of 2004, which covers \r\nMaterial Support, and section 1001 of the USA PATRIOT Act, \r\nwhich requires the IG to report to the Congress ever six months \r\non whether the IG has found any civil liberty violations.\r\n A. Section 1001 of the USA PATRIOT Act\r\n Section 1001 requires the Inspector General of the \r\nDepartment of Justice to submit a semiannual report. This \r\nsection does not sunset, but does help the Committee understand \r\nthe existence and extent of civil liberty abuses by the \r\nDepartment of Justice. Specifically, section 1001 directs the \r\nIG to investigate claims of civil rights or civil liberties \r\nviolations allegedly committed by the Department of Justice. \r\nSince enactment of the USA PATRIOT Act, the IG has issued six \r\nsemi-annual reports. In the sixth (and most recent) report, \r\nwhich was issued in March 2005, the IG had yet to find any \r\nviolations under the USA PATRIOT Act.\r\n 1. Background\r\n Section 1001 of the USA PATRIOT Act is based upon a \r\nproposal that emerged during consideration of anti-terrorism \r\nlegislation by the House Judiciary Committee. The Committee \r\nreport explains, ``In the wake of several significant incidents \r\nof security lapses and breach of regulations, there has arisen \r\nthe need for independent oversight of the Federal Bureau of \r\nInvestigation. Oversight of the Federal Bureau of Investigation \r\nis currently under the jurisdiction of the Department of \r\nJustice Office of Professional Responsibility. This section \r\ndirects the Inspector General of the Department of Justice to \r\nappoint a Deputy Inspector General for Civil Rights, Civil \r\nLiberties. This section also directs the Deputy Inspector to \r\nreview all information alleging abuses of civil rights, civil \r\nliberties, and racial and ethnic profiling by employees of the \r\nDepartment of Justice, which could include allegations of \r\ninappropriate profiling at the border,'' H.Rept. 107-236, at \r\n78. (2001).\r\n 2. The Department of Justice Office of Inspector General\r\n The Office of the Inspector General (OIG) in the Department \r\nof Justice is an independent entity that reports to both the \r\nAttorney General and Congress. The OIG's mission is to \r\ninvestigate allegations of waste, fraud, and abuse in DOJ \r\nprograms and personnel and to promote economy and efficiency in \r\nDOJ operations. The OIG has jurisdiction to review programs and \r\npersonnel in all DOJ components. Since its creation in 1989, \r\nthe OIG has had the authority to conduct audits and inspections \r\nin all DOJ components and investigations of employee misconduct \r\nin all components except the FBI and the Drug Enforcement \r\nAgency (DEA). On July 11, 2001, the Attorney General expanded \r\nthe OIG's jurisdiction to include criminal and administrative \r\ninvestigations of FBI and DEA employees.\r\n 3. Section 1001\r\n Section 1001 of the USA PATRIOT Act provides the following:\r\n The Inspector General of the Department of Justice shall \r\ndesignate one official who shall:\r\n (1) review information and receive complaints alleging \r\nabuses of civil rights and civil liberties by employees and \r\nofficials of the Department of Justice;\r\n (2) make public through the Internet, radio, television, \r\nand newspaper advertisements information on the \r\nresponsibilities and functions of, and how to contact, the \r\nofficial; and\r\n (3) submit to the Committee on the Judiciary of the House \r\nof Representatives and the Committee on the Judiciary of the \r\nSenate on a semi-annual basis a report on the implementation of \r\nthis subsection and detailing any abuses described in paragraph \r\n(1), including a description of the use of funds appropriations \r\nused to carry out this subsection.\r\n To undertake the responsibilities designated to the OIG by \r\nsection 1001, the OIG established the Special Operations Branch \r\nin its Investigations Division to help manage the OIG's \r\ninvestigative responsibilities outlined in the USA PATRIOT Act. \r\nThe Special Operations Branch receives civil rights and civil \r\nliberties complaints via mail, e-mail, telephone, and \r\nfacsimile. Once a complaint is received, it is reviewed by the \r\nInvestigative Specialist and ASAC responsible for USA PATRIOT \r\nAct complaints. After review, the complaint is entered into an \r\nOIG database and a decision is made concerning its disposition. \r\nThe more serious civil rights and civil liberties allegations \r\nthat relate to actions of a DOJ employee or contractor are \r\nassigned to an OIG Investigations Division field office for \r\ninvestigation. The OIG has approximately 120 series 1811 \r\nspecial agents who conduct investigations of criminal \r\nviolations and administrative misconduct. Because of its \r\nlimited resources, the OIG refers some complaints involving DOJ \r\nemployees to internal affairs offices in DOJ components, such \r\nas the FBI and the Bureau of Prisons (BOP) for appropriate \r\nhandling. Certain referrals require the component to report the \r\nresults of their investigation to the OIG. In most cases, the \r\nOIG notifies the complainant of the referral. Complaints \r\noutside the OIG's jurisdiction that identify a specific issue \r\nfor investigation are forwarded to the appropriate \r\ninvestigative entity.\r\n In addition, the OIG has referred complainants to a variety \r\nof police department internal affairs offices. Since passage of \r\nthe USA PATRIOT Act, the OIG also has been in close \r\ncommunication with the DOJ Civil Rights Division's National \r\nOrigin Working Group (NOWG) to Combat the (Post-9\/11 \r\nDiscriminatory Backlash). The NOWG regularly forwards \r\ncomplaints alleging civil rights and civil liberties abuses to \r\nthe OIG for review. Many of the complaints forwarded by the \r\nNOWG are the result of media database searches.\r\n When an allegation received from any source involves a \r\npotential violation of Federal civil rights statutes by a DOJ \r\nemployee, the complaint is discussed with the DOJ Civil Rights \r\nDivision for prosecutorial review. In some cases, the Civil \r\nRights Division accepts the case and requests additional \r\ninvestigation by either the OIG or FBI. In other cases, the \r\nCivil Rights Division declines prosecution.\\31\\\r\n---------------------------------------------------------------------------\r\n \\31\\ Report to Congress on Implementation of Section 1001 of the \r\nUSA PATRIOT Act (as required by Section 1001(3) of Public Law 107-56) \r\n(Mar. 2005), Office of the Inspector General, U.S. Dept. of Justice, \r\navailable at http:\/\/www.usdoj.gov\/oig\/special\/0503\/index.htm.\r\n---------------------------------------------------------------------------\r\n 4. Complaints Processed This Reporting Period\r\n From June 22, 2004, through December 31, 2004, the period \r\ncovered by the sixth report, the OIG processed 1,943 complaints \r\nthat were sent primarily to the OIG's section 1001 e-mail or \r\npostal address. Of these complaints, 1,748 did not warrant \r\nfurther investigation or did not fall within the OIG's \r\njurisdiction. Approximately three-quarters of the 1,748 \r\ncomplaints made allegations that did not warrant an \r\ninvestigation. For example, some of the complaints alleged that \r\nGovernment agents were broadcasting signals that interfere with \r\na person's thoughts or dreams or that prison officials had \r\nlaced the prison food with hallucinogenic drugs. The remaining \r\none-quarter of the 1,748 complaints in this category involved \r\nallegations against agencies or entities outside of the DOJ, \r\nincluding other Federal agencies, local governments, or private \r\nbusinesses. The OIG referred those complaints to the \r\nappropriate entity or advised complainants of the entity with \r\njurisdiction over their allegations.\r\n Consequently, 195 complaints involved DOJ employees or \r\ncomponents and made allegations that required further review. \r\nOf those complaints, 170 raised management issues rather than \r\nalleged ``civil rights'' or ``civil liberties'' abuses and were \r\nreferred to DOJ components for handling. For example, inmates \r\ncomplained about the general conditions at Federal prisons, \r\nsuch as the poor quality of the food or the lack of hygiene \r\nproducts. Twelve of the 195 complaints did not provide \r\nsufficient detail to make a determination whether an abuse was \r\nalleged. The OIG requested further information but did not \r\nreceive responses from any of these 12 complainants. Finally, \r\nthe OIG requested that the BOP investigate one of the \r\ncomplaints and report to the OIG on the investigation's \r\nfindings. That complaint involved an inmate who complained that \r\nhe was sexually harassed by a correctional officer. BOP's \r\ninvestigation of the matter is ongoing.\r\n Therefore, after analyzing these 195 complaints, the OIG \r\nidentified 12 matters that the OIG believed warranted opening a \r\nsection 1001 investigation or conducting a closer review to \r\ndetermine if section 1001-related abuse occurred. Of the 12 \r\nmatters, the OIG retained one for investigation because the \r\ncomplainant made allegations of a potentially criminal nature. \r\nThe OIG closed one because the allegations already had been \r\naddressed in a previous OIG investigation. The OIG referred the \r\nremaining ten matters, which appeared to raise largely \r\nadministrative issues, to Department components for further \r\ninvestigation or review. For six of the ten matters, the OIG \r\nrequested that the components report their findings to the IG.\r\n None of the complaints the OIG processed during this \r\nreporting period alleged misconduct by DOJ employees relating \r\nto the use of a provision in the USA PATRIOT Act.\\32\\ In \r\naddition, the IG has not substantiated claims of alleged \r\nmisconduct resulting from the use of a provision of the USA \r\nPATRIOT Act in any prior report, although one such allegation \r\nis still under review.\\33\\\r\n---------------------------------------------------------------------------\r\n \\32\\ Id.\r\n \\33\\ An OIG investigation relating to Brandon Mayfield is still \r\nongoing as of the date of this hearing.\r\n---------------------------------------------------------------------------\r\n B. Prohibition on Material Support to Terrorists\r\n 1. The Antiterrorism and Effective Death Penalty Act of \r\n 1996\r\n The USA PATRIOT Act did not create the prohibition on \r\nmaterial support to terrorists and foreign terrorist \r\norganizations, but did amend that prohibition. It was the \r\n``Antiterrorism and Effective Death Penalty Act of 1996,'' that \r\ncreated prohibitions to sever material support from \r\ninternational terrorists. The 1996 Act was in response to the \r\nOklahoma City and first World Trade Center terrorist attacks. \r\nSubtitle A of Title III of the 1996 Act: (1) established the \r\nprocedure under which a foreign organization may be designated \r\nas a terrorist organization; (2) proscribes providing such an \r\norganization with ``material support;'' and (3) established a \r\nsystem of civil penalties for banks and other financial \r\ninstitutions that fail to freeze and report the assets of such \r\norganizations. \\34\\\r\n---------------------------------------------------------------------------\r\n \\34\\ Antiterrorism and Effective Death Penalty Act of 1996: A \r\nSummary, Charles Doyle, Senior Specialist, American Law Division, \r\nCongressional Research Service, June 1996).\r\n---------------------------------------------------------------------------\r\n Section 302 of the 1996 Act ``established the procedure for \r\ndesignating as foreign terrorist organizations those foreign \r\norganizations that engage in terrorist activities that threaten \r\nthe national defense, foreign relations, or economic interests \r\nof the United States or the security of U.S. nationals, 8 \r\nU.S.C. Sec. 1189. The designation by the Secretary of State \r\nlasts for up to two years with the possibility of a two-year \r\nrenewal and may be withdrawn by the Secretary or by law. The \r\ndesignation is subject to judicial review on behalf of the \r\ndesignated organization if it is arbitrary, contrary to law, or \r\nin excess of authority. The Government may provide any \r\nsupporting classified information to the court in secret. The \r\ndesignation may not be contested by a donor subsequently \r\nprosecuted for support nor by an alien excluded from the United \r\nStates for association. Assets of a designated organization \r\nheld by a financial institution may be frozen by order of the \r\nSecretary of the Treasury.'' \\35\\\r\n---------------------------------------------------------------------------\r\n \\35\\ Id.\r\n---------------------------------------------------------------------------\r\n Section 303 of the 1996 Act ``outlaws providing support to \r\na foreign terrorist organization, 18 U.S.C. Sec. 2339B. In \r\naddition to money and the instrumentalities of war, prohibited \r\nsupport extends to food, medical supplies, and any other \r\nphysical asset except medicine itself and religious articles, \r\n18 U.S.C. Sec. 2339A; 142 Cong.Rec. H3334 (daily ed. April 5, \r\n1996). The fact that a particular contribution is made and used \r\nfor humanitarian purposes is no defense since the gist of the \r\noffense is contributing to a tainted organization regardless of \r\nthe purpose or use of the contribution. Violations are \r\npunishable by imprisonment for not more than 10 years and\/or a \r\nfine of not more than $250,000. Financial institutions that \r\nfail to report or comply with a freeze order are subject to \r\ncivil penalties of up to the greater of twice the amount \r\ninvolved or $50,000. The proscriptions apply both in the United \r\nStates and to Americans and American institutions overseas.'' \r\n\\36\\\r\n---------------------------------------------------------------------------\r\n \\36\\ Id.\r\n---------------------------------------------------------------------------\r\n 2. The 1998 Challenge to Material Support Prohibition\r\n Led by the Humanitarian Law Project, six organizations and \r\ntwo individuals challenged the constitutionality of the law in \r\n1998, contending that it violated the First Amendment.\r\n They argued, among other things, that the law infringed on \r\ntheir free-association rights, granted too much discretion to \r\nthe secretary of state and prohibited their First Amendment \r\nright to seek and donate funds.\r\n A Federal district court rejected most of the First \r\nAmendment claims, but ruled the definition of the term \r\n``material support'' was vague enough to prevent the government \r\nfrom enforcing the law.\r\n On appeal, a three-judge panel of the 9th U.S. Circuit \r\nCourt of Appeals agreed in Humanitarian Law Project v. Reno. \r\nJust as the lower court had, the appeals court cast aside most \r\nof the First Amendment arguments.\r\n The court rejected the free-association claim, finding that \r\nthe statute does not prohibit membership in a group or support \r\nfor the political goals of a group. ``What [the law] prohibits \r\nis the act of giving material support, and there is no \r\nconstitutional right to facilitate terrorism by giving \r\nterrorists the weapons and explosives with which to carry out \r\ntheir grisly missions,'' the court wrote in its March 3 \r\nopinion.\r\n The plaintiffs contended that the law could be interpreted \r\nto prohibit the giving of material support to the so-called \r\nterrorist groups' nonviolent humanitarian and political \r\nactivities.\r\n However, the 9th Circuit determined that the First \r\nAmendment did not protect the right to give funds to terrorist \r\ngroups. These ``terrorist groups do not maintain open books,'' \r\nthe court wrote. ``Therefore, when someone makes a donation to \r\nthem, there is no way to tell how the donation is used.''\r\n The appeals court distinguished between giving material \r\nsupport to a group and advocating the beliefs and ideas of a \r\ngroup. ``Advocacy is far different from making donations of \r\nmaterial support,'' the court wrote.\r\n The appeals court also dismissed the plaintiffs' argument \r\nthat the statute had empowered the secretary of state with \r\n``unfettered discretion'' to determine whether a group is a \r\nterrorist organization.\r\n The 9th Circuit pointed out that the secretary of state can \r\nonly designate a group as a terrorist group if he or she has \r\n``reasonable grounds to believe that an organization has \r\nengaged in terrorist acts.''\r\n However, the appeals court agreed with the plaintiffs and \r\nthe lower court that some of the law's language was too vague.\r\n The law defined ``material support'' as:\r\n\r\n Currency or other financial securities, financial services, \r\nlodging, training, safehouses, false documentation or \r\nidentification, communications equipment, facilities, weapons, \r\nlethal substances, explosives, personnel, transportation and \r\nother physical assets, except medicine or religion.\r\n\r\n The court focused on the terms ``training'' and \r\n``personnel,'' finding that these terms ``blur[red] the line \r\nbetween protected expression and unprotected conduct.''\r\n ``Someone who advocates the cause of * * * [a terrorist \r\norganization] * * * could be seen as supplying them with \r\npersonnel,'' the court wrote.\r\n The appeals court also had trouble with the word \r\n``training.'' ``For example, a plaintiff who wishes to instruct \r\nmembers of a designated group on how to petition the United \r\nNations to give aid to their group could plausibly decide that \r\nsuch protected expression falls within the scope of the term \r\n`training.' '' For these reasons, the court ruled that the \r\nlower court did not ``abuse its discretion'' in issuing a \r\npreliminary injunction.\\37\\\r\n---------------------------------------------------------------------------\r\n \\37\\ Federal appeals panel finds anti-terrorism law \r\nunconstitutionally vague, David Hudson, First Amendment Center research \r\nattorney, (April 8, 2000). [emphasis added].\r\n---------------------------------------------------------------------------\r\n 3. USA PATRIOT Act Amends the Material Support Provision\r\n Section 805(a)(2)(B) of the USA PATRIOT Act added the \r\nphrase ``expert advice or assistance'' to the types of material \r\nsupport to terrorists that is banned by the criminal law. Title \r\n18 U.S.C. Sec. 2339A prohibited providing material support or \r\nresources to terrorists prior to enactment of the USA PATRIOT \r\nAct. Prohibition on expert advice or assistance also applies to \r\n18 U.S.C. Sec. 2339B's prohibition of material support to FTOs. \r\nThe existing definition of ``material support or resources'' \r\nwas not broad enough to encompass expert services and \r\nassistance--for example, advice provided by a person with \r\nexpertise in aviation matters to facilitate an aircraft \r\nhijacking, or advice provided by an accountant to facilitate \r\nthe concealment of funds used to support terrorist activities. \r\nThis section accordingly amended 18 U.S.C. Sec. 2339A to \r\ninclude expert services and assistance, making the offense \r\napplicable to experts who provide services or assistance \r\nknowing or intending that the services or assistance is to be \r\nused in preparing for or carrying out terrorism crimes. This \r\nalso applies to 18 U.S.C. Sec. 2339B.\r\n 4. Challenges to the USA PATRIOT Act Prohibition of \r\n Material Support to Terrorists\r\n a. December 3, 2003 9th Circuit Decision\r\n Los Angeles--Civil rights lawyers filed a free-speech \r\nchallenge . . . to a section of the USA Patriot Act that makes \r\nit illegal to provide ``expert advice and assistance'' to \r\ngroups with alleged links to terrorists.\r\n The ban is unconstitutionally vague and should be struck \r\ndown, the New York-based Center for Constitutional Right argued \r\nin a motion filed in Federal court.\r\n The motion was included in the center's current lawsuit, \r\nHumanitarian Law Project v. Ashcroft, which challenges a 1996 \r\nlaw that makes it a crime to provide material support to any \r\ngroup designated a foreign terrorist organization. Federal \r\ncourts have already struck down portions of that law that \r\nbarred providing personnel or training to terrorist groups, \r\nsaying the provisions were unconstitutionally vague.\r\n The Patriot Act, passed after the Sept. 11, 2001, terrorist \r\nattacks, amended the definition of material support to include \r\n``expert advice and assistance.''\r\n The plaintiffs say they want to provide support for lawful, \r\nnonviolent activities by two groups designated as foreign \r\nterrorist organizations: the Kurdistan Workers' Party in Turkey \r\nand the Liberation Tigers of Tamil Eelam in Sri Lanka.\r\n One of the plaintiffs, Dr. Nagalingam Jeyalangim, would \r\nlike to work as a doctor in his war-torn homeland of Sri Lanka. \r\nHowever, because some hospitals are controlled by rebel forces \r\nthere, he fears he could be prosecuted for ``providing material \r\nsupport'' to a terrorist group, according to the filing.\r\n\r\n * * * * * * *\r\n\r\n---------------------------------------------------------------------------\r\n \\38\\ Patriot Act dealt blow by federal judge, The Associated Press, \r\nJanuary 26, 2004.\r\n---------------------------------------------------------------------------\r\n b. The 9th U.S. Circuit Court of Appeals Overturns \r\n Circuit's Ruling That the 1996 Terror Financing Law \r\n Was Unconstitutional\r\n A Federal appeals court reinstated indictments against \r\nseven Los Angeles residents accused of raising money for a \r\nterror organization with links to ousted Iraqi ruler Saddam \r\nHussein. In a victory for the Bush administration's war on \r\nterror, the 9th U.S. Circuit Court of Appeals yesterday \r\nreversed a Los Angeles Federal judge who declared the 1996 \r\nterror financing law unconstitutional.\r\n The law makes it illegal to funnel money--``material \r\nsupport''--to organizations the State Department says are \r\nlinked to terrorism, about 30 groups in all.\r\n Before the Sept. 11, 2001, attacks, the government rarely \r\nused the terror law. Subsequently the administration has used \r\nthe law to win dozens of terror convictions nationwide, from \r\nLackawanna, N.Y., to Seattle to Portland, Ore.\r\n\r\n * * * * * * *\r\n\r\n The case stems from a 2001 indictment against the seven \r\ndefendants for allegedly providing several hundred thousand \r\ndollars to the Mujahedin-e Khalq, which the appeals court said \r\n``participated in various terrorist activities against the \r\nIranian regime'' and ``carried out terrorist activities with \r\nthe support of Saddam Hussein's regime.''\r\n U.S. District Judge Robert Takasugi had invalidated the \r\nlaw, saying it did not provide the groups a proper forum to \r\ncontest their terror designations.\r\n But a three-judge panel of the San Francisco-based Federal \r\nappeals court overruled that decision and went a step further, \r\nsaying individuals accused of supporting the listed groups \r\ncannot challenge whether the groups should be listed.\r\n The government, the court said, must prove the ``fact that \r\na particular organization was designated at the time the \r\nmaterial support was given, not whether the government made a \r\ncorrect designation.''\r\n The 9th Circuit decision mirrors a ruling this year by the \r\n4th U.S. Circuit Court of Appeals in Richmond, Va., upholding \r\nthe conviction of a man who funneled money to the militant \r\nHezbollah organization while insisting he had a right to \r\nchallenge that group's listing.\r\n ``The Justice Department is pleased that yet another court \r\nhas upheld the constitutionality of the material-support \r\nstatute, a key weapon in our arsenal of legal remedies in the \r\nwar on terror,'' spokesman John Nowacki said. ``Stopping the \r\nflow of money and other resources to terrorists is critical to \r\nour success, and the department will continue to pursue those \r\nwho provide material support for terrorist objectives.''\r\n The seven Los Angeles defendants said it violated their \r\nFirst Amendment rights to be prohibited from contributing money \r\nto groups they say are not terror organizations. They said they \r\nshould be afforded the right to prove that the group in \r\nquestion should not be on the State Department's list.\r\n Writing for the majority, Judge Andrew J. Kleinfeld said \r\nthe First Amendment did not protect unlimited speech, and even \r\nallowed limits on campaign contributions.\r\n ``It would be anomalous indeed if Congress could prohibit \r\nthe contribution of money for television commercials saying why \r\na candidate would be a good or bad choice for political office, \r\nyet could not prohibit contribution of money to a group \r\ndesignated a terrorist organization,'' Kleinfeld wrote.\r\n\r\n * * * * * * *\r\n\r\n According to the indictment, the Los Angeles defendants \r\nsolicited donations at the Los Angeles International Airport \r\nand wired money to a Mujahedin-e Khalq bank account in Turkey. \r\nThe group had tried unsuccessfully to get removed from the \r\nterror list.\r\n No court date has been set for the seven.\\39\\\r\n---------------------------------------------------------------------------\r\n \\39\\ 9th Circuit reinstates terror indictments, the Associated \r\nPress, December 21, 2004.\r\n---------------------------------------------------------------------------\r\n 5. Intelligence Reform and Terrorism Prevention Act of 2004\r\n Section 6603 of the Intelligence Reform and Terrorism \r\nPrevention Act of 2004 adds a new crime of material support for \r\nterrorism for knowingly receiving military training from a \r\nforeign terrorist organization. The section requires that any \r\nperson charged under this section must have knowledge that the \r\norganization is a terrorist organization. It also defines the \r\nterm ``military-type training.'' Section 6603 also expands the \r\ncrime of material support to terrorists to include any act of \r\ninternational or domestic terrorism.\r\n Section 6603(c) specifies that any person charged under \r\nthis section must have knowledge that the organization is a \r\nterrorist organization. It also more clearly defines the term \r\n``material support.'' The Intelligence Reform and Terrorism \r\nPrevention Act of 2004 attempted to address the court cases \r\nfinding the terms ``training'' and ``personnel'' under the \r\nprohibition unconstitutionally vague,\\40\\ and the term ``expert \r\nadvice or assistance'' in material support statute \r\nunconstitutionally vague.\\41\\\r\n---------------------------------------------------------------------------\r\n \\40\\ See Humanitarian Law Project v. United States Department of \r\nJustice, 352 F.3d 382 (9th Cir. 2003).\r\n \\41\\ Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D. \r\nCal. Jan. 22, 2004).\r\n---------------------------------------------------------------------------\r\n The Intelligence Reform and Terrorism Prevention Act \r\nprovides more detailed definitions of the terms ``training,'' \r\nand ``expert advice or assistance'' under section 6603(b); and \r\n``personnel'' under section 6603(f) by creating new section \r\n3229B(a)(1)(h) of title 18 that limits the term ``personnel.''\r\n To address the Ninth Circuit's concern that \r\n the term ``training'' is vague and may cover protected \r\n First Amendment activity, the Act provides that \r\n training includes only instruction or teaching designed \r\n to impart a specific skill. This definition addresses \r\n the Ninth Circuit's concern that the material support \r\n statute could cover imparting general knowledge to a \r\n terrorist organization (such as knowledge about \r\n international law). It also addresses the Ninth \r\n Circuit's concern that the term ``training'' could \r\n cover First Amendment protected activity by \r\n specifically stating that the statute does not cover \r\n such activity.\r\n To address the Ninth Circuit's concern that \r\n the term ``personnel'' is unconstitutionally vague and \r\n could be interpreted to cover those independently \r\n advocating on behalf of a foreign terrorist \r\n organization, the legislation provides that the term \r\n ``personnel'' only refers to those either: (1) working \r\n under a terrorist organization's direction or control; \r\n or (2) managing or supervising the terrorist \r\n organization. This definition makes it clear that those \r\n independently advocating on behalf of a foreign \r\n terrorist organization's goals are not covered by the \r\n material support statute.\r\n To address the Ninth Circuit's concern that \r\n the term ``expert advice or assistance'' is vague, the \r\n legislation provides that ``expert advice or \r\n assistance'' means advice derived from scientific, \r\n technical, or other specialized knowledge. This \r\n definition is taken from the definition of expertise \r\n found in the Federal Rules of Evidence. It is well-\r\n known and well-understood by lawyers and courts. The \r\n proposal also addresses the Ninth Circuit's concern \r\n that the term ``expert advice or assistance'' could \r\n cover First Amendment protected activity by \r\n specifically stating that this language does not cover \r\n such activity.\r\n Section 6603(f) contains an exception that ``no person may \r\nbe prosecuted under this section in connection with the term \r\n`personnel,' `training,' or `expert advice or assistance' if \r\nthe provision of that material support or resources to a \r\nforeign terrorist organization was approved by the Secretary of \r\nState with the concurrence of the Attorney General.''\r\n Section 6603(g) also provides that section 6603 sunsets on \r\nDecember 31, 2006.\r\n 6. 9th Circuit Lifts 2002 Injunction Protecting Donors to \r\n Terrorist Organizations\r\n A Federal appeals court yesterday lifted an injunction that \r\nhad barred the government from prosecuting a Los Angeles group \r\nif it aids organizations labeled as supporting terrorism.\r\n The decision by the 9th U.S. Circuit Court of Appeals came \r\ndays after President Bush signed legislation overhauling U.S. \r\nintelligence gathering and terror-enforcement rules. The San \r\nFrancisco-based court said yesterday's decision in Humanitarian \r\nLaw Project v. Dept. of Justice was based partly on the \r\nIntelligence Reform and Terrorism Prevention Act of 2004, which \r\nBush signed into law on Dec. 17.\r\n The appeals court, however, did not comment on whether the \r\nHumanitarian Law Project could ever be prosecuted if it \r\nprovided advice to the Kurdistan Workers' Party or the Tamil \r\nTigers Eelam in Sri Lanka.\r\n The 11-judge panel of the 9th Circuit sent the case back to \r\nthe lower courts, wherethe Humanitarian Law Project is expected \r\nto challenge the new provisions.\r\n ``The end goal is to get another injunction,'' said David \r\nCole, a Georgetown University School of Law scholar who won the \r\n2002 injunction on behalf of the Humanitarian Law Project.\r\n Cole said the group would abide by the court's order.\r\n The State Department lists the Sri Lanka and Turkey groups \r\nas terror organizations. That makes it illegal for those in the \r\nUnited States to provide financial assistance under a 1996 law \r\ncreated in the aftermath of the attack on the Oklahoma City \r\nFederal building.\r\n The Humanitarian Law Project was not seeking to give money. \r\nRather, it wanted to donate personnel and training time to \r\nteach the groups about human rights and peacemaking, according \r\nto court documents.\r\n The humanitarian group had provided human rights support to \r\nthe Kurdistan party for years before the party was declared a \r\nterror organization by the United States. The humanitarian \r\ngroup challenged the 1996 law in Los Angeles Federal court a \r\nyear later, Cole said.\r\n The group sought the injunction because it feared its \r\nmembers might be prosecuted and imprisoned for up to 15 years.\r\n Before the Sept. 11, 2001, attacks, the government rarely \r\nused the terror law. The administration subsequently has \r\nemployed it to win dozens of terror convictions nationwide, \r\nfrom Lackawanna, N.Y., to Seattle and Portland, Ore.\r\n In 2003, the 9th Circuit said the Humanitarian Law Project \r\ncould donate human rights and peacemaking services because the \r\nlaw did not specifically outlaw such assistance. . . .\r\n The legislation, which creates a national intelligence \r\ncenter and the position of national intelligence director, \r\nmakes it illegal to assist the roughly 30 organizations the \r\nState Department says are linked to terrorism.\r\n The new law virtually outlaws any form of assistance, \r\nfinancial or not.\r\n\r\n * * * * * * *\r\n\r\n Yesterday's decision comes a day after a different panel of \r\nthe 9th Circuit reinstated the indictments against seven Los \r\nAngeles residents accused of raising money for a terror \r\norganization with links to ousted Iraqi ruler Saddam Hussein.\r\n The group claimed they had a right to challenge whether the \r\nterror group they were funding--Mujahedin-e Khalq--should be on \r\nthe terror list. The appeals court said the government must \r\nprove the ``fact that a particular organization was designated \r\nat the time the material support was given, not whether the \r\ngovernment made a correct designation.'' \\42\\\r\n---------------------------------------------------------------------------\r\n \\42\\ 9th Circuit lifts injunction protecting donors, the Associated \r\nPress, December 22, 2004.\r\n---------------------------------------------------------------------------\r\n\r\n9. May 26, 2005, Oversight Hearing on Material Witness Provisions of \r\n the Criminal Code and the Sections 505 and 804 of the USA \r\n PATRIOT Act\r\n\r\n On Thursday, May 26, 2005, the Subcommittee on Crime, \r\nTerrorism, and Homeland Security for the Committee on the \r\nJudiciary held a hearing on material witness provisions of the \r\ncriminal code and sections 505 (related to National Security \r\nLetters) and 804 (related to jurisdiction over crimes committed \r\nat U.S. facilities abroad) of the USA PATRIOT Act. The \r\nSubcommittee heard testimony from four witnesses--Chuck \r\nRosenberg, Chief of Staff to the Deputy Attorney General of the \r\nDepartment of Justice; Matthew Berry, Counselor to the \r\nAssistant Attorney General of the Department of Justice; and \r\ntwo witnesses for the minority: Gregory Nojeim, Acting Director \r\nof the Washington Legislative Office of the American Civil \r\nLiberties Union; and Shayana Kadidal, Staff Attorney, Center \r\nfor Constitutional Rights.\r\n A. National Security Letters\r\n 1. What Is a National Security Letter?\r\n A National Security Letter (NSL) is an administrative \r\nsubpoena that can be used in international counterterrorism or \r\nforeign counterintelligence investigations. An administrative \r\nsubpoena is an investigative tool that allows the FBI to \r\nrequest (compliance varies, see examples) document production \r\nor testimony without prior approval from a grand jury, court, \r\nor other judicial entity. Congress grants the administrative \r\nsubpoena power of executive branch entities as well as the \r\nscope and exercise of these authorities.\r\n 2. Types of National Security Letters\r\n A NSL can be used under the following circumstances and \r\nauthorities:\r\n 18 U.S.C. Sec. 2709, the Electronic \r\n Communications Privacy Act (ECPA), authorizes the FBI \r\n to issue NSLs for: (1) telephone subscriber information \r\n (limited to name, address, and length of service); (2) \r\n telephone local and long distance toll billing records; \r\n and (3) electronic communication transactional records.\r\n 12 U.S.C. Sec. 3414(a)(5), the Right to \r\n Financial Privacy Act (RFPA), authorizes the FBI to \r\n issue NSLs to obtain financial records from banks and \r\n other financial institutions.\r\n 15 U.S.C. Sec. 1681u, the Fair Credit \r\n Reporting Act (FCRA), authorizes the FBI to issue NSLs \r\n to obtain consumer identifying information and the \r\n identity of financial institutions from credit bureaus.\r\n 15 U.S.C. Sec. 1681v, Disclosures to \r\n governmental agencies for counterterrorism purposes, \r\n authorizes the FBI and other agencies to obtain credit \r\n reports.\r\n 50 U.S.C. Sec. 436, Requests by authorized \r\n investigate agencies, authorizes the FBI and other \r\n agencies to obtain financial records.\r\n 3. When Can NSLs Be Issued?\r\n In addition to the statutory authority set forth above, \r\nwhen an NSL can be issued or used is governed by the applicable \r\nAttorney General Guidelines for FBI National Security \r\nInvestigations and Foreign Intelligence Collection. NSLs are \r\nused in international counterterrorism or foreign \r\ncounterintelligence investigations. However, this authority is \r\nlimited further: NSLs issued under 15 U.S.C. Sec. 1681v (credit \r\nreports) can only be issued in counterterrorism cases; credit \r\nreports cannot be obtained for a foreign counterintelligence \r\ninvestigation under this section.\r\n NSLs cannot be used in criminal investigations unrelated to \r\ninternational terrorism or clandestine intelligence activities. \r\nFurthermore, both Executive Order 12333 and the FBI require \r\nthat the FBI accomplish these investigations by the ``least \r\nintrusive'' means.\r\n 4. Recent Legislative Changes to NSL Authority\r\n P.L. 107-56, the ``USA PATRIOT Act,'' simplified the \r\n NSL process. Prior to the Act, an FBI official \r\n authorizing the issuance of an NSL had to certify that \r\n there were specific and articulable facts that provide \r\n a reason to believe that the information sought \r\n pertains to a foreign power, or an agent of a foreign \r\n power. The USA PATRIOT Act changed this to allow for \r\n certification that the NSL is sought for a foreign \r\n counterintelligence purpose to protect against \r\n international terrorism and clandestine intelligence \r\n activities.\r\n This is consistent with the Supreme Court's rulings on the \r\nissuance and purpose of administrative subpoenas. Previously \r\nthe signature of a high-ranking official at FBI headquarters \r\nwas required to issue an NSL and the process often took months. \r\nIn many cases, counterintelligence and counterterrorism \r\ninvestigations suffered substantial delays while waiting for \r\nNSLs to be prepared, returned from headquarters, and served. \r\nThe Act streamlines the process for obtaining NSL authority by \r\nallowing the Director to designate an individual at \r\nHeadquarters, not lower than Deputy Assistant Director, or to \r\ndesignate a Special Agent in Charge in a Bureau field office, \r\nto authorize an NSL.\r\n The Supreme Court has construed administrative \r\n authorities, broadly holding that the ``government need \r\n only show that the subpoena was issued for a lawfully \r\n authorized purpose and sought information relevant to \r\n the agency's inquiry,'' United States v. LaSalle Nat'l \r\n Bank, 437 U.S. 298, 313 (1978); United States v. \r\n Powell, 379 U.S. 48, 56 (1964); Oklahoma Press \r\n Publishing Co. v. Walling, 327 U.S. 186, 209 \r\n (1946).\\43\\\r\n---------------------------------------------------------------------------\r\n \\43\\ Report to Congress on the Use of Administrative Subpoena \r\nAuthority by Executive Branch Agencies and Entities, Pursuant to Pub. \r\nL. No. 106-544, Section 7, n. 8, p. 7.\r\n---------------------------------------------------------------------------\r\n ``The Supreme Court has stated in United States v. \r\n Morton Salt[, 338 U.S. 632, 652 (1950)] that, in \r\n evaluating the appropriateness of an administrative \r\n subpoena request, a court must simply determine that \r\n `the inquiry is within the authority of the agency, the \r\n demand is not too indefinite and the information sought \r\n is reasonably relevant.' '' \\44\\\r\n---------------------------------------------------------------------------\r\n \\44\\ Report to Congress on the Use of Administrative Subpoena \r\nAuthority by Executive Branch Agencies and Entities, Pursuant to Pub. \r\nL. No. 106-544, Section 7, p. 8.\r\n---------------------------------------------------------------------------\r\n P.L. 108-177, the ``Intelligence \r\n Authorization Act for FY 2004,'' amended the Right to \r\n Financial Privacy Act (RFPA) (12 U.S.C. Sec. 3401). The \r\n Intelligence Authorization Act changed the definition \r\n of ``financial institution'' for NSLs to be consistent \r\n with the definition of ``financial institution'' used \r\n for money laundering under 31 U.S.C. Sec. 5312(a)(2). \r\n The old definition used for NSLs defined ``financial \r\n institution'' to cover any office of a (1) bank; (2) \r\n savings bank; (3) card issuer as defined in section \r\n 1602(n) of title 15; (4) industrial loan company; (5) \r\n trust company; (6) savings association; (7) building \r\n and loan, or homestead association (including \r\n cooperative banks); (8) credit union, or consumer \r\n finance institution.\r\n The money laundering definition under 31 U.S.C. \r\n Sec. 5312(a)(2), now applied to NSLs, covers: (1) An \r\n insured bank (as defined in section 3(h) of the Federal \r\n Deposit Insurance Act (12 U.S.C. Sec. 1813(h))); (2) a \r\n commercial bank or trust company; (3) a private banker; \r\n (4) an agency or branch of a foreign bank in the U.S.; \r\n (5) a credit union; (6) a thrift institution; (7) a \r\n broker or dealer registered with the Security and \r\n Exchange Commission under the Security Exchange Act of \r\n 1934 (15 U.S.C. Sec. 78 et seq.); (8) a broker or \r\n dealer in securities or commodities; (9) an investment \r\n banker or investment company; (10) a currency exchange; \r\n (11) an issuer, redeemer, or cashier of travelers' \r\n checks, checks, money orders, or similar instruments; \r\n (12) an operator of a credit card system; (13) an \r\n insurance company; (14) a dealer in precious metals, \r\n stones, or jewels; (15) a pawnbroker; (16) a loan or \r\n finance company; (17) a travel agency; (18) a licensed \r\n sender of money or any other person engaged in the \r\n transmission of funds; (19) a telegraph company; (20) a \r\n business engaged in vehicle sales, including \r\n automobile, airplane, and boat sales; (21) persons \r\n involved in real estate closings and settlements; (22) \r\n the U.S. Postal Service; (23) an agency of the United \r\n States Government or state or local government carrying \r\n out a duty or power of a business described in this \r\n paragraph; (24) a casino, gambling casino, or gaming \r\n establishment with an annual gaming revenue of more \r\n than 1 million; (25) any business or agency that \r\n engages in any activity that the Secretary of the \r\n Treasury determines, by regulation, to be an activity \r\n which is similar to, related to, or a substitute for, \r\n any activity in which any business described in this \r\n paragraph is authorized to engage; or (26) any other \r\n business designed by the Secretary whose case \r\n transactions have a high degree of usefulness in \r\n criminal, tax, or regulatory matters.\r\n It should be noted that under the money \r\n laundering provision, the Treasury Department also can \r\n use an administrative subpoena to get certain \r\n information. See 31 U.S.C. Sec. 5318(a)(4). Moreover, \r\n the FBI would usually use a grand jury subpoena (no \r\n court needed) to obtain certain information. Finally, \r\n the provisions in the Intelligence Authorization Act of \r\n 2004, Pub. L. No. 108-177, do not change the USA \r\n PATRIOT Act.\r\n 5. Previously Proposed Changes to NSLs\r\n H.R. 3179, the ``Anti-Terrorism Intelligence \r\n Tools Improvement Act of 2003,'' (9\/25\/04) introduced \r\n by Representatives Sensenbrenner and Goss in the 108th \r\n Congress: The bill would have established a penalty for \r\n an individual to disclose that he or she has received a \r\n request for information under an NSL and would have \r\n authorized the Attorney General to seek judicial \r\n enforcement against those refusing to comply with an \r\n NSL.\r\n Under current law, a person is generally \r\n prohibited from disclosing that he has received a \r\n request for information under an NSL. H.R. 3179 would \r\n have added a penalty for such a disclosure, making it a \r\n misdemeanor, unless the disclosure was intended to \r\n obstruct a terrorism or espionage investigation, then \r\n such a disclosure would be subject to imprisonment for \r\n not more than five years.\r\n Currently, no judicial enforcement \r\n procedures exist when a recipient of an NSL refuses to \r\n comply. H.R. 3179 would have authorized the Attorney \r\n General to seek judicial enforcement in NSL cases.\r\n Statutes granting administrative subpoena \r\n authorities usually fall into three enforcement type-\r\n categories: (1) the statute authorizes an agency to \r\n apply directly to an appropriate U.S. District Court \r\n for enforcement assistance; (2) the statute requires \r\n the agency official to request the Attorney General's \r\n aid in applying to a U.S. District Court for \r\n enforcement assistance; or (3) the statute contains no \r\n identified enforcement mechanism. Some of the statutes \r\n granting authority for issuing NSLs contain no \r\n enforcement mechanisms.\r\n 6. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)\r\n In September 2004, the United States District Court for the \r\nSouthern District of New York struck down 18 U.S.C. Sec. 2709, \r\nthe statute authorizing ``national security letters,'' or NSLs, \r\nfor customer records from Internet, telephone, and other \r\nelectronic service providers.\r\n In Doe v. Ashcroft, the court found that the language of 18 \r\nU.S.C. 2709 and the practices surrounding its use offended (1) \r\nthe Fourth Amendment because ``in all but the exceptional case \r\nit has the effect of authorizing coercive searches effectively \r\nimmune from any judicial process,'' 334 F.Supp.2d at 506, and \r\n(2) the First Amendment because its sweeping, permanent gag \r\norder provision applies ``in every case, to every person, in \r\nperpetuity, with no vehicle for the ban to ever be lifted from \r\nthe recipient or other persons affected under any \r\ncircumstances, either by the FBI itself, or pursuant to \r\njudicial process,'' id. at 476. The court concluded that the \r\nnational security letters before it differed from \r\nadministrative subpoenas by want of judicial review either \r\nbefore or after ``the seizure'':\r\n\r\n While the Fourth Amendment reasonableness standard is \r\n permissive in the context of the administrative \r\n subpoenas, the constitutionality of the administrative \r\n subpoena is predicated on the availability of a neutral \r\n tribunal to determine, after a subpoena issued, whether \r\n the subpoena actually complies with the Fourth \r\n Amendment's demands. In contrast to an actual physical \r\n search, which must be justified by the warrant and \r\n probable cause requirements occurring before the \r\n search, an administrative subpoena ``is regulated by \r\n and its justification derives from, [judicial] \r\n process'' available after the subpoena is issued.\r\n Accordingly, the Supreme Court has held that an \r\n administrative subpoena ``may not be made and \r\n enforced'' by the administrative agency; rather, the \r\n subpoenaed party must be able to ``obtain judicial \r\n review of the reasonableness of the demand prior to \r\n suffering penalties for refusing to comply.'' In sum, \r\n longstanding Supreme Court doctrine makes clear that an \r\n administrative subpoena statute is consistent with the \r\n Fourth Amendment when it is subject to ``judicial \r\n supervision'' and ``surrounded by every safeguard of \r\n judicial restraint.'' 334 F.Supp.2d at 495, quoting \r\n inter alia, Oklahoma Press Pub. Co. v. Walling, 327 \r\n U.S. at 217; See v. City of Seattle, 387 U.S. 541, 544-\r\n 45 (1967).\r\n By way of emphasizing the troubling sweep of the \r\n nondisclosure ban found in 18 U.S.C. 2709(c), the court \r\n pointed to legislative proposals in the 108th Congress \r\n that might serve as one of several possible models for \r\n a more narrowly tailored means of protecting the \r\n legitimate governmental interests upon which section \r\n 2709 rests.\\45\\\r\n---------------------------------------------------------------------------\r\n \\45\\ Doyle, Charles, Congressional Research Service RL32880, \r\nAdministrative Subpoenas and National Security Letters in Criminal and \r\nForeign Intelligence Investigations: Background and Proposed \r\nAdjustments Administrative Subpoenas and National Security Letters in \r\nCriminal and Foreign Intelligence Investigations: Background and \r\nProposed Adjustments. P. 24-25 (April 15, 2005).\r\n---------------------------------------------------------------------------\r\n 7. Doe v. Ashcroft and H.R. 3179, ``The Anti-Terrorism \r\n Intelligence Tools Improvement Act of 2003''\r\n In the 108th Congress, Chairman Sensenbrenner introduced \r\nH.R. 3179, in part to address the fact that some NSL had \r\nexplicit enforcement mechanisms and others did not. The Court \r\nin Doe v. Ashcroft concluded that there were three problems \r\nwith NSLs: 1) the statute did not clarify whether consulting an \r\nattorney would violate the prohibition on disclosure under the \r\nlaw, 2) the statute contained no explicit provision for the \r\nGovernment to seek judicial enforcement, and 3) there was no \r\nprovision imposing penalties against a person who fails to \r\ncomply with an NSL. The Court found that ``H.R. 3179 would have \r\naddressed two of the issues listed above by explicitly \r\nproviding for judicial enforcement of NSLs and by imposing \r\npenalties of up to five years' imprisonment for persons who \r\nunlawfully disclose that they have received an NSL.'' \\46\\\r\n---------------------------------------------------------------------------\r\n \\46\\ Doe v. Ashcroft, 334 F. Supp. 2d 471, 493 (S.D.N.Y. 2004).\r\n---------------------------------------------------------------------------\r\n B. Extraterritorial Jurisdiction\r\n 1. What Is Extraterritorial Jurisdiction\r\n Extraterritorial jurisdiction occurs when Federal law \r\napplies overseas to U.S. citizens and U.S. foreign nationals \r\nwhen there is some nexus to the United States, according to the \r\nCongressional Research Service.\r\n\r\n The Constitution does not forbid either Congressional \r\n or state enactment of laws which apply outside the \r\n United States. Nor does it prohibit either the Federal \r\n government or the states from enforcing American law \r\n abroad. In fact, several passages suggest that the \r\n Constitution contemplates the application of American \r\n law beyond the geographical confines of the United \r\n States.\\47\\ It speaks of ``felonies on the high seas,'' \r\n ``offences against the law of nations,'' ``commerce \r\n with foreign nations,'' and of the impact of treaties.\r\n---------------------------------------------------------------------------\r\n \\47\\ Doyle, Charles, Congressional Research Service RS21306, \r\nTerrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent \r\nDevelopments in Brief. P. 1 (Sept 6, 2002).\r\n---------------------------------------------------------------------------\r\n The Constitution provides the power to enact criminal \r\n laws with extraterritorial application. It vests \r\n Congress with, among other things, the power ``to \r\n regulate commerce with foreign nations * * * to define \r\n and punish piracies and felonies committed on the high \r\n seas, and offenses against the law of nations * * *'' \r\n and gives Congress legislative jurisdiction over places \r\n acquired ``for the erection of forts, magazines, \r\n arsenals, dock- years, and other needful buildings.''\r\n The Constitution also limits the manner in which this \r\n authority may be exercised. The due process clause of \r\n the Fifth Amendment, for instance, bars the \r\n extraterritorial application of Federal criminal laws \r\n in the absence of a connection between the crime, the \r\n defendant, and the United States. Prosecution requires \r\n personal jurisdiction over the defendant and subject \r\n matter jurisdiction over the crime. * * *.\\48\\\r\n---------------------------------------------------------------------------\r\n \\48\\ Doyle, Charles, Congressional Research Service RS21306, \r\nTerrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent \r\nDevelopments in Brief. P. 1 (Sept 6, 2002).\r\n---------------------------------------------------------------------------\r\n 2. The Military Extraterritorial Jurisdiction Act of 2000\r\n The Military Extraterritorial Jurisdiction Act covers \r\nfelonies, committed anywhere overseas, by members of the armed \r\nforces or those accompanying or employed by the Department of \r\nDefense, as if they were committed within the territorial \r\njurisdiction of the United States, 18 U.S.C. Sec. 3261.\\49\\ \r\nWhile the Military Extraterritorial Jurisdiction Act extended \r\nFederal criminal jurisdiction to Defense Department employees \r\nand contractors outside the U.S., it does not cover contractors \r\nworking for other agencies. Section 804 of the USA PATRIOT Act \r\nclosed this loophole.\r\n---------------------------------------------------------------------------\r\n \\49\\ Id. At 3.\r\n---------------------------------------------------------------------------\r\n 3. Section 804 of the USA PATRIOT Act\r\n According to the Congressional Research Service:\r\n\r\n [The USA] PATRIOT Act addressed a split in the \r\n circuit courts of appeals over whether the Federal laws \r\n that outlaw such crimes as murder, rape, and robbery \r\n when committed within Federal enclaves in this country \r\n also apply on American governmental installations \r\n abroad. With the enactment of section 804, they do; at \r\n least when either the victim or the offender is a U.S. \r\n national. Prior to the PATRIOT Act, the dispute \r\n centered on the construction of 18 U.S.C. 7(3) which \r\n defines the special territorial jurisdiction of the \r\n United States. The Fourth and Ninth Circuits held that \r\n the definition in subsection 7(3) includes areas in \r\n other countries over which the host nation has afforded \r\n the United States privileges akin to sovereignty. The \r\n Second Circuit held that the subsection is intended to \r\n encompass only those areas over which Congress may \r\n exercise legislative jurisdiction of the kind \r\n ordinarily vested in the Several States.\r\n Congress resolved the dispute, or at least greatly \r\n mitigated its consequences, when it enacted section 804 \r\n of the USA PATRIOT Act and the Military \r\n Extraterritorial Jurisdiction Act of 2000. The Military \r\n Extraterritorial Jurisdiction Act treats felonies, \r\n committed anywhere overseas by members of the armed \r\n forces or those accompanying or employed by them, as if \r\n they were committed within the territorial jurisdiction \r\n of the United States, 18 U.S.C. 3261. Section 804 of \r\n the USA PATRIOT Act creates a new territorial \r\n subsection in 18 U.S.C. 7: the special territorial \r\n jurisdiction of the United States includes the overseas \r\n business premises of Federal governmental entities and \r\n the residences of the members of their staffs, but only \r\n for crimes committed by or against Americans (other \r\n than those who come within the military extension of 18 \r\n U.S.C. 3261). The split in the circuits remains of \r\n consequence for crimes committed in Federal overseas \r\n facilities by foreign nationals who are not associated \r\n with the U.S. armed forces. In the Fourth and Ninth \r\n Circuits, such crimes may come within the territorial \r\n jurisdiction of the United States. In the Second \r\n Circuit, they do not.\\50\\\r\n---------------------------------------------------------------------------\r\n \\50\\ Id.\r\n---------------------------------------------------------------------------\r\n C. Material Witness Law\r\n Title 18 U.S.C. Sec. 3144 provides that if ``it appears \r\nfrom an affidavit filed by a party that the testimony of a \r\nperson is material in a criminal proceeding, and if it is shown \r\nthat it may become impracticable to secure the presence of the \r\nperson by subpoena, a judicial officer may order the arrest of \r\nthe person and treat the person in accordance with the \r\nprovisions of section 2142 of this title. No material witness \r\nmay be detained because of inability to comply with any \r\ncondition of release if the testimony of such witness can \r\nadequately be secured by deposition, and if further detention \r\nis not necessary to prevent a failure of justice. Release of a \r\nmaterial witness may be delayed for a reasonable period of time \r\nuntil the deposition of the witness can be taken pursuant to \r\nthe Federal Rules of Criminal Procedure.'' The material witness \r\nstatute is available to both the Government and the defense to \r\nassure testimony in criminal trials in the interest of justice.\r\n The statute specifically limits this authority: no material \r\nwitness may be detained if: (1) the witness' testimony can be \r\nadequately secured by deposition; and (2) further detention is \r\nnot necessary to prevent a failure of justice. However, release \r\nmay be delayed for a reasonable amount of time until the \r\nmaterial witness' deposition can be taken.\r\n C. Oversight in the 107th and 108th Congress of the USA \r\n PATRIOT Act\r\n Due to the concerns that these new authorities could lead \r\nto civil liberties violations, Congress included reporting \r\nrequirements and a sunset provision. Authorities under sections \r\n201, 202, 203(b) and (d), 204, 206, 207, 209, 212, 214, 215, \r\n217, 218, 220, 223 and 225 of the USA PATRIOT Act (Pub. L. No. \r\n107-296) expire this year on December 31, 2005.\r\n 1. IG Report Under Section 1001 of the USA PATRIOT Act\r\n The USA PATRIOT Act contains reporting requirements to \r\nfacilitate ongoing Congressional oversight of the Department of \r\nJustice and the implementation of the Act. Section 1001 of the \r\nUSA PATRIOT Act requires the Inspector General of the \r\nDepartment of Justice to report to the House and Senate \r\nCommittees on the Judiciary on a semi-annual basis on any \r\ncomplaints of civil liberties abuses by the Department of \r\nJustice. In accordance with Section 1001, the Department of \r\nJustice has sent six reports entitled, ``Report to Congress on \r\nthe implementation of Section 1001 of the USA PATRIOT Act.''\r\n 2. No Evidence of Civil Liberty Violations Has Been \r\n Presented to Congress\r\n Democrat Senator Dianne Feinstein acknowledged the many \r\nmisconceptions surrounding the USA PATRIOT Act at the Senate \r\nJudiciary Committee's hearing on October 21, 2003, regarding \r\nTerrorism Prevention Laws.\\51\\ Senator Feinstein noted that \r\ndespite the fact that 34 states have passed resolutions or \r\nordinances against the USA PATRIOT Act mostly due to perceived \r\ncivil rights concerns-she has never had a single abuse of the \r\nUSA PATRIOT Act reported to her. She stated, ``There is a lot \r\nof public uncertainty about this bill.'' She went on to note: \r\n``I find it interesting that, of the 21,000 comments I've \r\nreceived * * * to have half really against a bill that has \r\nnever come to the Hill is interesting. And to have a \r\nsubstantial number relate to the National Entry-Exit \r\nRegistration System, which is not part of the bill, is also \r\ninteresting. Now what I had deduced from this is that there are \r\nsubstantial uncertainty--perhaps some ignorance--about what \r\nthis bill actually does do'' \\52\\ This is interesting but \r\nunderstandable, given that every legislative attempt to improve \r\nnational security is labeled ``PATRIOT II'' by groups opposed \r\nto the USA PATRIOT Act.\r\n---------------------------------------------------------------------------\r\n \\51\\ U.S. Senate Judiciary Committee Hearing ``Terrorism Prevention \r\nLaws'' October 21, 2003, p 15.\r\n \\52\\ Id.\r\n---------------------------------------------------------------------------\r\n Senator Feinstein, moreover, has continued to request \r\ninformation from the Department of Justice on whether \r\nviolations have occurred. An April 26, 2005 letter responds:\r\n\r\n In a letter dated April 4, 2005, the American Civil \r\n Liberties Union (``ACLU'') responded to your March 25 \r\n request for information regarding alleged ``abuses'' of \r\n the USA PATRIOT Act. At your request, the Department of \r\n Justice has reviewed the ACLU's allegations. It appears \r\n that each matter cited by the ACLU either did not, in \r\n fact, involve the USA PATRIOT Act or was an entirely \r\n appropriate use of the Act. Thus, the ACLU is mistaken \r\n in its assertion in the letter that ``the government \r\n has abused and misused the Patriot Act repeatedly'' and \r\n its press release, entitled ``Patriot Act Abuses and \r\n Misuses Abound,'' that accompanied the letter. * * *'' \r\n \\53\\\r\n---------------------------------------------------------------------------\r\n \\53\\ April 26, 2005, Letter to the Honorable Diane Feinstein from \r\nWilliam E. Moschella.\r\n---------------------------------------------------------------------------\r\n 3. Continued Oversight Through Letters to the Department of \r\n Justice\r\n Furthermore, both the House and the Senate Judiciary \r\nCommittees have conducted continuous oversight. The House \r\nJudiciary Committee sent the Attorney General a letter on June \r\n13, 2002, with 50 detailed questions on the implementation of \r\nthe USA PATRIOT Act.\\54\\ The questions were a result of \r\nextensive consultation between the Majority and Minority \r\nCommittee counsel. Assistant Attorney General, Daniel Bryant, \r\nresponded to Chairman Sensenbrenner and Ranking Member Mr. \r\nConyers on July 26, 2002, providing lengthy responses to 28 out \r\nof the 50 questions submitted.\\55\\ On August 26, 2002, Mr. \r\nBryant sent the responses to the remaining questions,\\56\\ after \r\nsending responses to six of the questions to the House \r\nPermanent Select Committee on Intelligence.\r\n---------------------------------------------------------------------------\r\n \\54\\ June 13, 2002, Letter to the Attorney General from F. James \r\nSensenbrenner, Jr., and John Conyers, Jr., requesting responses to 50 \r\nquestions regarding the implementation of the PATRIOT Act.\r\n \\55\\ July 26, 2002, Responses from Daniel J. Bryant to F. James \r\nSensenbrenner, Jr., and John Conyers, Jr., to 28 of the 50 questions \r\nsubmitted to the Department of Justice on June 13, 2002.\r\n \\56\\ August 26, 2002, Responses from Daniel J. Bryant to F. James \r\nSensenbrenner, Jr., and John Conyers, Jr., to the remaining questions \r\n(six of the responses being sent to the House Permanent Select \r\nCommittee on Intelligence) submitted to the Department of Justice on \r\nJune 13, 2002.\r\n---------------------------------------------------------------------------\r\n Then, on September 20, 2002, Mr. Bryant sent the Minority \r\nadditional information regarding the Department of Justice's \r\nresponses to these questions.\\57\\ On April 1, 2003,\r\n---------------------------------------------------------------------------\r\n \\57\\ September 20, 2002, Additional information from Daniel J. \r\nBryant to F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding \r\nthe Department's responses to questions submitted to the Department of \r\nJustice on June 13, 2002.\r\n---------------------------------------------------------------------------\r\n Then, on September 20, 2002, Mr. Bryant sent the Minority \r\nadditional information regarding the Department of Justice's \r\nresponses to these questions.\\57\\ On April 1, 2003, Chairman \r\nSensenbrenner and Ranking Member Conyers sent a second letter \r\nto the Department of Justice with additional questions \r\nregarding the use of pre-existing authorities and the new \r\nauthorities conferred by the USA PATRIOT Act.\\58\\ Once again, \r\nthe questions were the product of bipartisan coordination by \r\nCommittee counsel. Acting Assistant Attorney General, Jamie E. \r\nBrown, responded with a May 13, 2003 letter that answered the \r\nquestions she deemed relevant to the Department of Justice and \r\nforwarded the remaining questions to the appropriate officials \r\nat the Department of Homeland Security.\\59\\ On June 13, 2003, \r\nthe Assistant Secretary for Legislative Affairs at the \r\nDepartment of Homeland Security, Pamela J. Turner, sent \r\nresponses to the forwarded questions.\\60\\ These items are \r\nposted on the Committee's website and were the subject of \r\nextensive press coverage.\\61\\\r\n---------------------------------------------------------------------------\r\n \\57\\ September 20, 2002, Additional information from Daniel Bryant \r\nto F. James Sensenbrenner, Jr., and John Conyers, Jr., regarding the \r\nDepartment's responses to questions submitted to the Department of \r\nJustice on June 13, 2002.\r\n \\58\\ April 1, 2003, Letter to the Attorney General from F. James \r\nSensenbrenner, Jr., and John Conyers, Jr., regarding the use of \r\npreexisting authorities and the new authorities conferred by the \r\nPATRIOT Act.\r\n \\59\\ May 13, 2003, Response from Jamie E. Brown to F. James \r\nSensenbrenner, Jr., and John Conyers, Jr., to letter sent to the \r\nDepartment of Justice on April 1, 2003.\r\n \\60\\ June 13, 2003, Responses from Pamela J. Turner at the \r\nDepartment of Homeland Security to F. James Sensenbrenner, Jr., and \r\nJohn Conyers, Jr., to questions forwarded from the Department of \r\nJustice on June 13, 2003.\r\n \\61\\ May 20, 2003, Press Release: ``Sensenbrenner\/Conyers Release \r\nJustice Department Oversight Answers Regarding USA PATRIOT Act and War \r\non Terrorism''; May 20, 2003, Curt Anderson, ``Fewer than 50 Held \r\nWithout Charges,'' Associated Press Online; May 20, 2003, Curt \r\nAnderson, ``Government Has Held Fewer Than 50 People as Material \r\nWitnesses in War on Terror,'' Associated Press Worldstream; May 20, \r\n2003, ``Sensenbrenner, Conyers Release Justice Department Oversight \r\nAnswers Regarding USA PATRIOT Act, War on Terrorism,'' U.S. Newswire; \r\nMay 21, 2003, Kevin Johnson and Toni Locy, ``Justice Department Reveals \r\nTactics Used in Fight Against Terror,'' USA Today; July 22, 2003, Press \r\nRelease: ``Statement Regarding Inspector General's Report on Civil \r\nRights\/Liberties Complaints''; July 22, 2003, Audrey Hudson, ``US \r\nProbes PATRIOT Act Complaints, Substantiates Few,'' The Washington \r\nTimes; September 18, 2003, Press Release: ``Sensenbrenner Statement on \r\nJustice Department's Disclosure of Number of Times Library and Business \r\nRecords have been Sought Under Section 215 of the USA PATRIOT Act''; \r\nSeptember 19, 2003, Audrey Hudson, ``Librarians Dispute Justice's Claim \r\non Use of PATRIOT Act,'' The Washington Times; September 24, 2002, \r\n``Waiting for All the Answers,'' The Milwaukee Journal Sentinel Copley \r\nNews Service.\r\n---------------------------------------------------------------------------\r\n On November 20, 2003, Chairman Sensenbrenner and \r\nCongressman Hostettler, Chairman of the Subcommittee on \r\nImmigration, Border Security, and Claims, sent a letter to the \r\nComptroller General of the Government Accountability Office \r\n(GAO) requesting a GAO study of the implementation of the USA \r\nPATRIOT Act anti-money laundering provisions. This report was \r\nreleased on June 6, 2005.\r\n On May 19, 2005, Chairman Sensenbrenner sent a letter to \r\nAttorney General Gonzales with questions for the record from \r\nMembers of the Committee.\\62\\ Assistant Attorney General \r\nMoschella provided responses to 39 of the questions on July 12, \r\n2005.\\63\\\r\n---------------------------------------------------------------------------\r\n \\62\\ May 19, 2005, Letter to the Attorney General from F. James \r\nSensenbrenner, Jr., requesting responses to 44 follow-up questions \r\nposed during hearings on implementation of the USA PATRIOT Act.\r\n \\63\\ July 12, 2005, Letter to F. James Sensenbrenner, Jr., from \r\nWilliam E. Moschella responding to 39 follow-up question on \r\nimplementation of the USA PATRIOT Act.\r\n---------------------------------------------------------------------------\r\n On May 19, 2005, Chairman Sensenbrenner also sent a letter \r\nto Attorney General Gonzales with ten questions on specific \r\nprovisions of the USA PATRIOT Act.\\64\\ On June 10, 2005 the \r\nDepartment responded in a classified letter.\\65\\\r\n---------------------------------------------------------------------------\r\n \\64\\ May 19, 2005, Letter to the Attorney General from F. James \r\nSensenbrenner, Jr., requesting responses to 10 questions on provisions \r\nof the USA PATRIOT Act.\r\n \\65\\ June 10, 2005, Letter to F. James Sensenbrenner, Jr., from \r\nWilliam E. Moschella responding to 10 questions on provisions of the \r\nUSA PATRIOT Act.\r\n---------------------------------------------------------------------------\r\n On July 1, 2005, Chairman Sensenbrenner sent a letter to \r\nAttorney General Gonzales requesting additional information on \r\nbehalf of Minority Members of the Committee on the use of the \r\nUSA PATRIOT Act.\\66\\ On July 12, 2005 Assistant Attorney \r\nGeneral Moschella responded.\\67\\\r\n---------------------------------------------------------------------------\r\n \\66\\ July 1, 2005, Letter to the Attorney General from F. James \r\nSensenbrenner, Jr., requesting responses to 18 follow-up questions \r\nposed during hearings on implementation of the USA PATRIOT Act.\r\n \\67\\ July 12, 2005, Letter to F. James Sensenbrenner, Jr., from \r\nWilliam E. Moschella responding to 18 follow-up questions posed during \r\nhearings on implementation of the USA PATRIOT Act.\r\n---------------------------------------------------------------------------\r\n 4. Continued Oversight Through Hearings\r\n The House Judiciary Committee also has held hearings as \r\npart of its ongoing oversight efforts. On May 20, 2003, the \r\nCommittee's Subcommittee on the Constitution held an oversight \r\nhearing entitled, ``Anti-Terrorism Investigations and the \r\nFourth Amendment After September 11th: Where and When Can \r\nGovernment Go to Prevent Terrorist Attacks.'' Then, on June 5, \r\n2003, the Attorney General testified before the full Committee \r\non the Judiciary at an oversight hearing on the United States \r\nDepartment of Justice. Both the hearing on May 20 and the \r\nhearing on June 5 discussed oversight aspects of the USA \r\nPATRIOT Act.\r\n The Senate Judiciary Committee has been active in its \r\noversight responsibilities regarding the implementation of the \r\nUSA PATRIOT Act as well. The Senate Judiciary Committee held \r\nhearings on December 6, 2001; April 17, 2002; June 6, 2002; \r\nJuly 25, 2002; September 10, 2002; and July 23, 2003; September \r\n22, 2004; April 5, 2005; and May 10, 2005--all in regard to the \r\nUSA PATRIOT Act or oversight efforts at the Department of \r\nJustice. Counsel to the Subcommittee on Crime, Terrorism, and \r\nHomeland Security have monitored these activities and are in \r\nregular contact with their counterparts in the other body.\r\n 5. Continued Oversight Through Briefings\r\n Further, the Subcommittee on Crime, Terrorism, and Homeland \r\nSecurity of this Committee requested that officials from the \r\nDepartment of Justice appear and answer questions regarding the \r\nimplementation of the USA PATRIOT Act. In response to our \r\nrequests, the Department of Justice gave briefings to Members, \r\ncounsel, and staff. During a briefing held on August 7, 2003, \r\nDepartment officials covered the long-standing authority for \r\nlaw enforcement to conduct delayed searches and collect \r\nbusiness records, as well as the effect of the USA PATRIOT Act \r\non those authorities. During a second briefing, held on \r\nFebruary 3, 2004, the Department of Justice discussed its views \r\nof S. 1709, the ``Security and Freedom Ensured (SAFE) Act of \r\n2003,'' and H.R. 3352, the House companion bill, as both bills \r\nproposed changes to the USA PATRIOT Act.\r\n The Department of Justice has also provided two classified \r\nbriefings on the use of the Foreign Intelligence Surveillance \r\nAct (FISA) under the USA PATRIOT Act for Members of the \r\nJudiciary Committee. On June 10, 2003, and October 29, 2003, \r\nthe Justice Department provided these briefings. The Department \r\nalso provided a law enforcement sensitive briefing on FISA to \r\nthe House Judiciary Committee Members and staff on March 22, \r\n2005 and a classified briefing on June 7, 2005.\r\n\r\n Hearings\r\n\r\n The full Committee on the Judiciary held 3 days of hearings \r\non the reauthorization of the USA PATRIOT Act on April 6, June \r\n8, and June 10 of 2005; and the Committee's Subcommittee on \r\nCrime, Terrorism, and Homeland Security held a total of 9 \r\nhearings on April 19, April 21, April 26, April 28, May 3, May \r\n5, May 10, and May 26 of 2005. On April 28 the Subcommittee on \r\nCrime, Terrorism, and Homeland Security held two hearings.\r\n\r\n Committee Consideration\r\n\r\n On July 13, 2005, the Committee met in open session and \r\nordered favorably reported the bill H.R. 3199 with amendment by \r\na recorded vote of 23 yeas to 14 nays and 2 passes, a quorum \r\nbeing present.\r\n\r\n Vote of the Committee\r\n\r\n In compliance with clause 3(b) of rule XIII of the Rules of \r\nthe House of Representatives, the Committee notes that the \r\nfollowing roll call votes occurred during the Committee's \r\nconsideration of H.R. 3199.\r\n 1. An amendment was offered by Mr. Lungren to section 2702 \r\nof title 18. Section 2702 of title 18 was amended by section \r\n212 of the USA PATRIOT Act in 2001 to allow Internet service \r\nproviders to voluntarily disclose the contents of electronic \r\ncommunications and subscriber information in emergencies \r\ninvolving immediate danger of death or serious physical injury. \r\nThe amendment would require the Attorney General to report \r\nannually to the Judiciary Committees of the House and Senate \r\nand set forth the number of accounts subject to a voluntary \r\ndisclosure under section 212. The report would also have to \r\nsummarize the basis for disclosure in certain circumstances. \r\nThe amendment passed by voice vote.\r\n 2. An amendment was offered by Mr. Nadler to amend section \r\n501 of the Foreign Intelligence Surveillance Act of 1978 to \r\nchange the current standard necessary for obtaining a section \r\n215 order to request business records held by third parties to \r\nrequire a showing of ``specific and articulable facts giving \r\nreason to believe that the person to whom the records pertain \r\nis a foreign power or an agent of a foreign power.'' The \r\namendment also would allow the recipient to challenge the order \r\nand to petition the court to set aside the non-disclosure \r\nrequirement. Theamendment failed by a vote of 12 yeas and 23 \r\nnays.\r\n\r\n ROLLCALL NO. 1\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins.....................................................\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 12 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 3. An amendment was offered by Mr. Flake to amend section \r\n8(c) of H.R. 3199 to clarify further that a person can disclose \r\nto an attorney the receipt of a 215 order not only to respond, \r\nbut to challenge, the order. The amendment passed by voice \r\nvote.\r\n 4. An amendment was offered by Ms. Waters to amend section \r\n505 of the USA PATRIOT Act to prohibit the issuance of national \r\nsecurity letters for records from health insurance companies. \r\nThe amendment failed by a recorded vote of 14 yeas and 23 nays.\r\n\r\n ROLLCALL NO. 2\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 5. An amendment was offered by Mr. Issa to amend section \r\n105(c) of the Foreign Intelligence Surveillance Act of 1978. \r\nThis section was modified by section 206 of the USA PATRIOT Act \r\nto authorize roving wiretaps in FISA investigations. The \r\namendment will (1) require applications for roving wiretap \r\nsurveillance authority to include specific facts upon which the \r\ncourt can make its determination and (2) if the authority is \r\ngranted, require the applicant to notify the court within 10 \r\ndays of the initiation of surveillance on a new facility or \r\nplace and to notify the court of the facts and circumstances \r\nrelied upon by the applicant to justify the belief that the \r\ntarget would be using each new facility. The amendment passed \r\nby a recorded vote of 34 yeas and 0 nays.\r\n\r\n ROLLCALL NO. 3\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)...............................................\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 34 0\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 6. An amendment was offered by Mr. Scott to second the \r\namendment offered by Mr. Lungren for a 10-year sunset for \r\nsections 206 and 215 of the USA PATRIOT Act. The amendment \r\nwould have reduced the 10-year to a 4-year sunset. The \r\namendment failed by a recorded vote of 15 yeas and 21 nays.\r\n\r\n ROLLCALL NO. 4\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 15 21\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 7. An amendment was offered by Mr. Nadler to second the \r\namendment offered by Mr. Lungren for a 10-year sunset for \r\nsections 206 and 215 of the USA PATRIOT Act. The amendment \r\nwould have reduced the 10-year to a 6-year sunset. The \r\namendment failed by a recorded vote of 9 yeas and 18 nays.\r\n\r\n ROLLCALL NO. 5\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller......................................................\r\nMr. Issa........................................................ X\r\nMr. Flake.......................................................\r\nMr. Pence.......................................................\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks......................................................\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman......................................................\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren.....................................................\r\nMs. Jackson Lee.................................................\r\nMs. Waters......................................................\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner......................................................\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen..................................................\r\nMs. Wasserman Schultz...........................................\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 9 18\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 8. An amendment was offered by Mr. Lungren that would \r\nprovide a sunset for sections 206 and 215 of the USA PATRIOT \r\nAct. Under the amendment these provisions would expire in 10 \r\nyears. This amendment passed by a recorded vote of 26 yeas and \r\n2 nays.\r\n\r\n ROLLCALL NO. 6\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler..................................................\r\nMr. Green....................................................... X\r\nMr. Keller......................................................\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence.......................................................\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks......................................................\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman......................................................\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren.....................................................\r\nMs. Jackson Lee.................................................\r\nMs. Waters......................................................\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner......................................................\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz...........................................\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 26 2\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 9. An amendment was offered by Mr. Nadler (for himself and \r\nMs. Lofgren) to strike section 3 of H.R. 3199. Section 3 \r\nrepeals section 224 of the USA PATRIOT Act that states \r\nauthorities under sections 201, 202, 203(b) and (d), 204, 206, \r\n207, 209, 212, 214, 215, 217, 218, 220, 223, and 225 of the USA \r\nPATRIOT Act (P.L. 107-296) expire on December 31, 2005. Mr. \r\nLungren's amendment that passed would place a 10-year sunset on \r\ntwo of those sixteen provisions. Mr. Nadler's amendment would \r\nplace a 10-year sunset on the remaining fourteen sections. The \r\namendment failed by a recorded vote of 12 yeas to 21 nays.\r\n\r\n ROLLCALL NO. 7\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte...................................................\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters......................................................\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz...........................................\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 12 21\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 10. An amendment was offered by Mr. Van Hollen (for himself \r\nand Mr. Conyers) to amend section 2339A(a) of title 18 to \r\nspecify that the transfer of a firearm to an individual whose \r\nname appears in the Violent Gang and Terrorist Organization \r\nFile maintained by the Attorney General was under covered. The \r\namendment failed by a recorded vote of 15 yeas to 22 nays.\r\n\r\n ROLLCALL NO. 8\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon......................................................\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 15 22\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 11. An amendment was offered by Mr. Schiff to prohibit \r\nsurveillance for planning of terrorist attacks on mass \r\ntransportation. The amendment passed by voice vote.\r\n 12. An amendment was offered by Ms. Lofgren to amend \r\nsection 2339A of title 18 to specify that the transfer of 50-\r\ncaliber sniper weapons to a member of al Qaeda. The amendment \r\nfailed by a recorded vote of 13 yeas to 22 nays.\r\n\r\n ROLLCALL NO. 9\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt....................................................\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 13 22\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 13. An amendment was offered by Ms. Lofgren to amend \r\nsection 1001 of USA PATRIOT Act to require the Inspector \r\nGeneral for the Department of Justice to conduct a review of \r\nmaterial witness detentions under section 3144 of title 18. The \r\namendment passed by a recorded vote of 34 yeas to 0 nays.\r\n\r\n ROLLCALL NO. 10\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks......................................................\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner......................................................\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 34 0\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 14. An amendment was offered by Mr. Schiff to amend section \r\n105(c) of the Foreign Intelligence Surveillance Act to require \r\nthat where the identity of the target of surveillance is not \r\nknown, a specific description is provided of the target. The \r\namendment failed by a recorded vote of 15 yeas to 22 nays.\r\n\r\n ROLLCALL NO. 11\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner......................................................\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 15 22\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 15. An amendment was offered by Mr. Watt to require that \r\nwhen a warrant is executed in a district other than the \r\ndistrict in which it was issued, a recipient may seek to quash \r\nthat warrant in the district in which it is served, or, if the \r\n``person is a corporation,'' in any district in the State \r\nwherein the corporation was incorporated. The amendment failed \r\nby a recorded vote of 14 yeas to 24 nays.\r\n\r\n ROLLCALL NO. 12\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus......................................................\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 24\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 16. An amendment was offered en bloc by Mr. Schiff to, \r\namong other things, extend civil forfeiture in certain \r\ncircumstances to ``trafficking in nuclear, chemical, \r\nbiological, or radiological weapons technology or material;'' \r\namend the current definition of ``federal crime of terrorism,'' \r\nto include new predicate terrorism offenses; and add new \r\n``wiretap predicates'' under section 2516 of title 18 of the \r\nFederal criminal code that relate to crimes of terrorism. The \r\namendment passed by voice vote.\r\n 17. An amendment was offered by Mr. Schiff to eliminate the \r\nnondisclosure requirement of a Foreign Intelligence \r\nSurveillance Court order for business records from a library or \r\nbookstore, or for medical records, when an individual is a \r\ncitizen of the United States, at the conclusion of \r\ninvestigation. The amendment failed by a recorded vote of 13 \r\nyeas and 20 nays.\r\n\r\n ROLLCALL NO. 13\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler......................................................\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................\r\nMs. Lofgren.....................................................\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 13 20\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 18. An amendment was offered by Mr. Wexler to amend section \r\n2339A(a) of title 18, the material support to terrorists \r\nprovisions of the Federal criminal code, by inserting ``reveals \r\nany information pertaining to the identity of undercover \r\nintelligence officers, agents, informants, and sources that the \r\nperson has or should have reason to believe would be sufficient \r\nto be used to identify a United States intelligence \r\noperative.'' The amendment failed by voice vote.\r\n 19. An amendment was offered by Ms. Lofgren that no Act of \r\nCongress shall be construed to suspend habeas corpus. The \r\namendment failed by a recorded vote of 14 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 14\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher..................................................... X\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters......................................................\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 20. An amendment was offered by Mr. Watt (for himself and \r\nMs. Waters) to strike section 8(c) of H.R. 3199 to eliminate \r\nthe nondisclosure requirement of a Foreign Intelligence \r\nSurveillance Court order for business records in a national \r\nsecurity case unless law enforcement in an ``application for \r\nsuch an order provides specific and articulable facts giving \r\nthe applicant reason to believe that disclosure would result'' \r\nin adverse affects specified in the amendment. The amendment \r\nfailed by a recorded vote of 13 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 15\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot......................................................\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 13 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 21. An amendment was offered by Mr. Scott to entitle a \r\nperson who prevails on a challenge of the legality of a section \r\n215 order to reasonable attorneys fees, if any, incurred by the \r\nperson in pursuing the challenge. The amendment failed by a \r\nrecorded vote of 14 yeas to 22 nays.\r\n\r\n ROLLCALL NO. 16\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot......................................................\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee.................................................\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 22\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 22. An amendment was offered by Mr. Schiff to extend for 3 \r\nyears the sunset provision relating to individual terrorists as \r\nagents of foreign powers. The amendment failed by a recorded \r\nvote of 14 yeas to 22 nays.\r\n\r\n ROLLCALL NO. 17\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot......................................................\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 22\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 23. An amendment was offered by Ms. Jackson Lee to provide \r\nnotice of a physical search or surveillance if the subject of \r\nsuch search or surveillance is a United States person who is \r\nnot an agent of a foreign power. The amendment failed by a \r\nrecorded vote of 10 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 18\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman......................................................\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren.....................................................\r\nMs. Jackson Lee................................................. X\r\nMs. Waters......................................................\r\nMr. Meehan......................................................\r\nMr. Delahunt....................................................\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff......................................................\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 10 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 24. An amendment was offered by Mr. Flake (for himself and \r\nMr. Nadler) to section 3103a(b)(3) of title 18 to clarify a \r\nreasonable period of time for notice of a search warrant to \r\nwith a period of time of up to 180 days, with extensions of up \r\nto 90 day increments. The amendment passed by voice vote.\r\n 25. An amendment was offered by Mr. Conyers to create a \r\nstatutory suppression rule for electronic surveillance and to \r\nrequire increased reporting. The amendment failed by a recorded \r\nvote of 14 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 19\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 26. An amendment was offered by Mr. Nadler that would amend \r\nthe laws governing national security letters to require the \r\ngovernment to demonstrate why the request should not be \r\ndisclosed. The amendment failed by a recorded vote of 14 yeas \r\nto 23 nays.\r\n\r\n ROLLCALL NO. 20\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 14 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 27. An amendment was offered by Mr. Scott to amend section \r\n105(c) of the Foreign Intelligence Surveillance Act to require \r\nsurveillance may be directed at a place or facility only for \r\nsuch time as the applicant believes that such facility or place \r\nis being used, or about to be used by the target of the \r\nsurveillance. The amendment failed by a recorded vote of 13 \r\nyeas to 23 nays.\r\n\r\n ROLLCALL NO. 21\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler......................................................\r\nMr. Weiner...................................................... X\r\nMr. Schiff......................................................\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 13 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 28. An amendment was offered by Mr. Schiff that would \r\nrequire public disclosure of the use of national security \r\nletters. The amendment failed by a recorded vote of 15 yeas and \r\n21 nays.\r\n\r\n ROLLCALL NO. 22\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)...............................................\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 15 21\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 29. An amendment was offered by Ms. Jackson Lee that would \r\namend section 501(a)(1) of the Foreign Intelligence \r\nSurveillance Act to exclude medical records from the types of \r\nbusiness records a Foreign Intelligence Surveillance Court \r\norder may seek. The amendment failed by a recorded vote of 12 \r\nyeas to 24 nays.\r\n\r\n ROLLCALL NO. 23\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)...............................................\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman......................................................\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan......................................................\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 12 24\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 30. An amendment was offered by Mr. Van Hollen to require \r\nthe Inspector General of the Department of Justice to review \r\nthe progress of the development of procedures established by \r\nthe Terrorist Screening Center for the removal of misidentified \r\nindividuals from the Terrorist Screening Database. The \r\namendment failed by a recorded vote of 15 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 24\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters......................................................\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 15 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 31. An amendment was offered by Mr. Nadler to authorize \r\ndisclosure of the receipt of a national security letter to \r\nqualified persons, as defined by the amendment. The amendment \r\nfailed by a recorded vote of 16 yeas to 23 nays.\r\n\r\n ROLLCALL NO. 25\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 16 23\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 32. An amendment was offered by Mr. Scott to broaden the \r\nexemption in the prohibition of providing material support to \r\nterrorists to also cover ``medical services, drinking water, \r\nfood, children's clothing, educational supplies or services, \r\nand other humanitarian materials and services that could not be \r\ndiverted to military ends'' to terrorists. The amendment failed \r\nby a recorded vote of 7 yeas to 31 nays.\r\n\r\n ROLLCALL NO. 26\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren.....................................................\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... X\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 7 31\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 33. An amendment was offered by Ms. Jackson Lee to require \r\nthe Inspector General of the Department of Justice to review \r\nthe use of any investigative authority under the Attorney \r\nGeneral Guidelines on General Crimes, Racketeering Enterprises \r\nand Domestic Security\/Terrorism Investigations beyond those \r\napproved by Attorney General Dick Thornburg in March 21, 1989. \r\nThe amendment failed by a recorded vote of 13 yeas to 25 nays.\r\n\r\n ROLLCALL NO. 27\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... X\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff......................................................\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 13 25\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n 34. An amendment was offered by Nadler (for himself and Mr. \r\nScott) to amend the statutes authorizing national security \r\nletters regarding judicial review. The amendment failed by \r\nvoice vote.\r\n 35. Motion to report H.R. 3199, as amended was agreed to by \r\na roll call vote of 23 yeas to 14 nays and 2 pass.\r\n\r\n ROLLCALL NO. 28\r\n----------------------------------------------------------------------------------------------------------------\r\n Ayes Nays Present\r\n----------------------------------------------------------------------------------------------------------------\r\nMr. Hyde........................................................ X\r\nMr. Coble....................................................... X\r\nMr. Smith (Texas)............................................... X\r\nMr. Gallegly.................................................... X\r\nMr. Goodlatte................................................... X\r\nMr. Chabot...................................................... X\r\nMr. Lungren..................................................... X\r\nMr. Jenkins..................................................... X\r\nMr. Cannon...................................................... X\r\nMr. Bachus...................................................... X\r\nMr. Inglis...................................................... X\r\nMr. Hostettler.................................................. X\r\nMr. Green....................................................... X\r\nMr. Keller...................................................... X\r\nMr. Issa........................................................ X\r\nMr. Flake....................................................... X\r\nMr. Pence....................................................... X\r\nMr. Forbes...................................................... X\r\nMr. King........................................................ X\r\nMr. Feeney...................................................... X\r\nMr. Franks...................................................... X\r\nMr. Gohmert..................................................... X\r\nMr. Conyers..................................................... X\r\nMr. Berman...................................................... Pass\r\nMr. Boucher.....................................................\r\nMr. Nadler...................................................... X\r\nMr. Scott....................................................... X\r\nMr. Watt........................................................ X\r\nMs. Lofgren..................................................... X\r\nMs. Jackson Lee................................................. X\r\nMs. Waters...................................................... X\r\nMr. Meehan...................................................... X\r\nMr. Delahunt.................................................... X\r\nMr. Wexler...................................................... X\r\nMr. Weiner...................................................... X\r\nMr. Schiff...................................................... Pass\r\nMs. Sanchez..................................................... X\r\nMr. Van Hollen.................................................. X\r\nMs. Wasserman Schultz........................................... X\r\nMr. Sensenbrenner, Chairman..................................... X\r\n -----------------------------------------------\r\n Total....................................................... 23 14 2 Pass\r\n----------------------------------------------------------------------------------------------------------------\r\n\r\n Committee Oversight Findings\r\n\r\n In compliance with clause 3(c)(1) of rule XIII of the Rules \r\nof the House of Representatives, the Committee reports that the \r\nfindings and recommendations of the Committee, based on \r\noversight activities under clause 2(b)(1) of rule X of the \r\nRules of the House of Representatives, are incorporated in the \r\ndescriptive portions of this report.\r\n\r\n New Budget Authority and Tax Expenditures\r\n\r\n Clause 3(c)(2) of rule XIII of the Rules of the House of \r\nRepresentatives is inapplicable because this legislation does \r\nnot provide new budgetary authority or increased tax \r\nexpenditures.\r\n\r\n Congressional Budget Office Cost Estimate\r\n\r\n In compliance with clause 3(c)(3) of rule XIII of the Rules \r\nof the House of Representatives, the Committee sets forth, with \r\nrespect to the bill, H.R. 3199, the following estimate and \r\ncomparison prepared by the Director of the Congressional Budget \r\nOffice under section 402 of the Congressional Budget Act of \r\n1974:\r\n\r\n July 18, 2005.\r\nHon. F. James Sensenbrenner, Jr.,\r\nChairman, Committee on the Judiciary\r\nHouse of Representatives, Washington, DC.\r\n Dear Mr. Chairman: The Congressional Budget Office has \r\nprepared the enclosed cost estimate for H.R. 3199, the USA \r\nPATRIOT and Terrorism Prevention Reauthorization Act of 2005.\r\n If you wish further details on this estimate, we will be \r\npleased to provide them. The CBO staff contact is Mark \r\nGrabowicz.\r\n Sincerely,\r\n Douglas Holtz-Eakin,\r\n Director.\r\n Enclosure.\r\n\r\nH.R. 3199--USA PATRIOT and Terrorism Prevention Reauthorization Act of \r\n 2005\r\n\r\n CBO estimates that implementing H.R. 3199 would have no \r\nsignificant cost to the federal government. Enacting the bill \r\ncould affect direct spending and revenues, but CBO estimates \r\nthat any such effects would not be significant.\r\n The Uniting and Strengthening America by Providing \r\nAppropriate Tools Required to Intercept and Obstruct Terrorism \r\n(USA PATRIOT) Act of 2001 (Public Law 107-56), as well as the \r\nIntelligence Reform and Terrorism Prevention Act of 2004 \r\n(Public Law 108-458), expanded the powers of federal law \r\nenforcement and intelligence agencies to investigate and \r\nprosecute terrorist acts. H.R. 3199 would permanently authorize \r\ncertain provisions of these acts, many of which will otherwise \r\nexpire on December 31, 2005. In addition, the bill would make \r\nseveral other changes to the laws relating to investigations of \r\npotential terrorist activity.\r\n Because those prosecuted and convicted under H.R. 3199 \r\ncould be subject to civil and criminal fines, the federal \r\ngovernment might collect additional fines if the legislation is \r\nenacted. Collections of civil fines are recorded in the budget \r\nas revenues. Criminal fines are recorded as revenues, then \r\ndeposited in the Crime Victims Fund and later spent. CBO \r\nexpects that any additional revenues and direct spending would \r\nnot be significant because of the relatively small number of \r\ncases affected.\r\n Section 4 of the Unfunded Mandates Reform Act (UMRA) \r\nexcludes from the application of that act any legislative \r\nprovisions that are necessary for national security. CBO has \r\ndetermined that the provisions of this bill are either excluded \r\nfrom UMRA because they are necessary for the national security \r\nor they contain no intergovernmental or private-sector \r\nmandates.\r\n On July 18, 2005, CBO transmitted a cost estimate for H.R. \r\n3199 as ordered reported by the House Permanent Select \r\nCommittee on Intelligence on July 13, 2005. The two versions of \r\nthe bill are similar and the cost estimates are identical.\r\n The CBO staff contact for this estimate is Mark Grabowicz. \r\nThis estimate was approved by Peter H. Fontaine, Deputy \r\nAssistant Director for Budget Analysis.\r\n\r\n Performance Goals and Objectives\r\n\r\n The Committee states that pursuant to clause 3(c)(4) of \r\nrule XIII of the Rules of the House of Representatives, H.R. \r\n3199, will continue to provide enhanced law enforcement and \r\nintelligence investigative tools and improved information \r\nsharing while protecting civil liberties. By clarifying the \r\nauthority provided under the USA PATRIOT Act and by eliminating \r\nmuch of the sunset provision in that Act and the Intelligence \r\nReform and Terrorism Prevent Act, this bill provides certainty \r\nin the Federal criminal law, ensures that the metaphorical \r\n``Wall'' is not rebuilt and thus information sharing can \r\ncontinue to improve between law enforcement and the \r\nIntelligence Community, and maintains the advancements in law \r\nenforcement technology to investigate and thwart terrorist and \r\ncriminal activities.\r\n\r\n Constitutional Authority Statement\r\n\r\n Pursuant to clause 3(d)(1) of rule XIII of the Rules of the \r\nHouse of Representatives, the Committee finds the authority for \r\nthis legislation in article 1 of the Constitution.\r\n\r\n Section-by-Section Analysis and Discussion\r\n\r\n The section-by-section represents the bill as reported by \r\nthe Committee on the Judiciary.\r\n\r\nSection 1. Short Title\r\n\r\n This Act would be cited as the ``USA PATRIOT and Terrorism \r\nPrevention Reauthorization Act of 2005.'' Because the Act would \r\nrepeal sunsets under the USA PATRIOT Act and the Intelligence \r\nReform and Terrorism Prevention Act of 2004, the title refers \r\nto both Acts.\r\n\r\nSection 2. References to PATRIOT Act\r\n\r\n This section states that for this Reauthorization Act, the \r\nUniting and Strengthening America by Providing Appropriate \r\nTools Required to Intercept and Obstruct Terrorism shall be \r\nreferred to as the USA PATRIOT Act.\r\n\r\nSection 3. Repeal of USA PATRIOT Act sunset provision\r\n\r\n This section repeals section 224 of the USA PATRIOT Act \r\nthat stated authorities under sections 201, 202, 203(b) and \r\n(d), 204, 207, 209, 212, 214, 217, 218, 220, 223 and 225 of the \r\nUSA PATRIOT Act (Pub. L. No. 107-296) would expire this year on \r\nDecember 31, 2005. The provision sunsetting sections 206 and \r\n215 is extended until December 31, 2015.\r\n The twelve hearings provided evidence that parts of the USA \r\nPATRIOT Act needed to be clarified, as Attorney General \r\nGonzales and other Department of Justice officials have \r\ntestified. However, witnesses did not provide any evidence that \r\nthe Government or law enforcement was abusing the authorities \r\nof the USA PATRIOT Act to the Congress or to the Department of \r\nJustice Inspector General. The IG, as required by section 1001 \r\nof the USA PATRIOT Act, has issued 6 semiannual reports and has \r\nnot found abuse by Department of Justice employees of these new \r\nauthorities.\r\n\r\nSection 4. Repeal of sunset of Individual Terrorists as Agents of \r\n Foreign Powers\r\n\r\n Section 4 of this bill repeals section 6001(b) of the \r\nIntelligence Reform and Terrorism Prevention Act (IRTPA). \r\nSection 6001(b) sunsets section 6001 of IRTPA, which provided a \r\nadditional definition for ``Agent of a Foreign Power,'' to \r\ncover the ``lone wolf'' under 50 U.S.C. 1801(b)(1). Section \r\n1801(b)(1) defined ``Agent of a foreign power'' for any person \r\nother than a United States person, who--\r\n (A) acts in the United States as an officer or \r\n employee of a foreign power, or as a member of a \r\n foreign power as defined in subsection (a)(4) of this \r\n section;\r\n (B) acts for or on behalf of a foreign power which \r\n engages in clandestine intelligence activities in the \r\n United States contrary to the interests of the United \r\n States, when the circumstances of such person's \r\n presence in the United States indicate that such person \r\n may engage in such activities in the United States, or \r\n when such person knowingly aids or abets any person in \r\n the conduct of such activities or knowingly conspires \r\n with any person to engage in such activities;\r\n Section 6001 of the IRTPA added new subparagraph C to the \r\ndefinition, which states ``Agent of a foreign power'' for any \r\nperson other than a United States person, includes a person who \r\n``engages in international terrorism or activities in \r\npreparation thereof;''.\r\n Section 6001(b) addressed oversight concerns about the \r\nprovision, by applying the USA PATRIOT Act sunset to the \r\nprovision so that definition sunsets on December 31, 2005.\r\n\r\nSection 5. Repeal of sunset provision relating to section 2332B and the \r\n Material Support sections of Title 18, United States Code\r\n\r\n This section repeals section 6603(g) of the IRTPA, which \r\nwould sunset section 6603, the ``Additions to Offense of \r\nProviding Material Support to Terrorism''. This sunset is \r\nproblematic in many respects. First, it sunsets a criminal \r\noffense and not a law enforcement tool and, second, the sunset \r\nwould effectively make the underlying provision \r\nunconstitutional. Section 805(a)(2)(B) of the USA PATRIOT Act \r\nwas amended by section 6603 of the IRTPA of 2004, which covers \r\nthe prohibition against providing material support to \r\nterrorists. The changes made in the IRTPA actually addressed \r\ncourt concerns on the constitutionality of the Federal crime of \r\nproviding material support to terrorists.\r\n On May 10, 2005, the Subcommittee on Crime, Terrorism, and \r\nHomeland Security held a hearing on the material support \r\nprovision as enhanced by the USA PATRIOT Act in 2001 and the \r\nIRTPA of 2004. The ban on providing material support to \r\nterrorists pre-dates the USA PATRIOT Act, as it was created in \r\n1996 in the Antiterrorism and Effective Death Penalty Act. The \r\n1996 Act, in part, was in response to the Oklahoma City and \r\nfirst World Trade Center terrorist attacks and made it illegal \r\nto knowingly provide material support to a group designated as \r\na Foreign Terrorist Organization, better known as an FTO.\r\n In 1998 a group, led by the Humanitarian Law Project, \r\nchallenged the constitutionality of the ban, arguing it the \r\nviolated the First Amendment. Both the 9th Circuit District \r\nCourt and the Appeals Court rejected most of the First \r\nAmendment claims. The Appeals Court, for instance, rejected the \r\nfree-association claim, finding that the statute does not \r\nprohibit membership in a group or support for the political \r\ngoals of a group. The Appeals Court pointed out that ``What \r\n[the law] prohibits is the act of giving material support, and \r\nthere is no constitutional right to facilitate terrorism by \r\ngiving terrorists the weapons and explosives with which to \r\ncarry out their grisly missions.''\r\n The 9th Circuit also rejected the plaintiffs' contention \r\nthat the law could be interpreted to prohibit the giving of \r\nmaterial support to the so-called terrorist groups' nonviolent \r\nhumanitarian and political activities, concluding that the \r\nFirst Amendment did not create a right to give funds to \r\nterrorist groups. Money is fungible and the Court recognized \r\nthat ``when someone makes a donation to [terrorist groups], \r\nthere is no way to tell how the donation is used.''\r\n The Court did find that the language was too vague in \r\nareas, and focused on the terms ``training'' and ``personnel.'' \r\nThe 9th Circuit also found in another case that the term \r\n``expert advice or assistance'' was unconstitutionally vague. \r\n``Expert advice or assistance'' is language from the USA \r\nPATRIOT Act. Congress corrected these vagueness problems with \r\nsection 6603 of the IRTPA of 2004.\r\n On December 21, 2004, the 9th Circuit Appeals Court \r\nrecognized this correction in lifting an injunction that had \r\nbarred the Government from prosecuting a Los Angeles group, if \r\nthe group aided organizations classified as supporting \r\nterrorism. According to an Associated Press story dated \r\nDecember 22, 2004, the Court ``said [its December 21] decision \r\nin Humanitarian Law Project v. Dept. of Justice was based \r\npartly on the IRTPA of 2004, which [President] Bush signed into \r\nlaw on [December 17, 2004].''\r\n\r\nSection 6. Sharing of electronic, wire, and oral interception \r\n information\r\n\r\n Section 6 responds to concerns that additional judicial \r\noversight was needed for the sharing of criminal wiretap \r\ninformation to the Intelligence Community. Section 6 of the Act \r\namends section 2517(6) of title 18, which was added by section \r\n203(b) of the USA PATRIOT Act by requiring that ``an officer or \r\nattorney who makes a disclosure under this subsection shall, \r\nwithin a reasonable time after that disclosure, notify the \r\ncourt that issued the wiretap order that such information was \r\nshared.'' The Department of Justice stated at one of the many \r\nhearings on the USA PATRIOT Act that they could ``take [such a \r\nproposal] under consideration and have a discussion about \r\n[it].'' But ``[w]ith respect to 203(d), relating to that \r\nsharing of information, [it] would put an unreasonable burden \r\nin terms of how we seek to exchange the information in a task \r\nforce [i.e., JTTF and NTTC] approach.''\r\n On April 19, 2005, the Subcommittee on Crime, Terrorism, \r\nand Homeland Security held a hearing on Section 203, which \r\nfacilitates effective sharing of information collected through \r\nthe use of criminal wiretaps, grand juries, and other criminal \r\ninvestigations, with Executive Branch officials. To protect \r\nprivacy, the USA PATRIOT Act: (1) limited such disclosures to \r\nforeign intelligence and counterintelligence information, as \r\ndefined by statute; (2) restricted disclosure to officials with \r\na need to know in performance of official duties; and (3) \r\nretained the limitations on public or other unauthorized \r\ndisclosure. Prior to passage of the USA PATRIOT Act, the law \r\nhampered law enforcement from sharing information with or \r\nreceiving information from other Government agencies outside of \r\nlaw enforcement that might nevertheless relate to terrorist \r\nactivities or national security.\r\n Section 203(b) deals with information obtained through a \r\ncriminal wiretap. The section amended section 2517 of title 18 \r\nto allow law enforcement officials to share foreign \r\nintelligence or counterintelligence (as defined in section 3 of \r\nthe National Security Act of 1947 (50 U.S.C. 401a)), or foreign \r\nintelligence information (as defined in subsection (19) of \r\nsection 2510 of this title) obtained through a criminal wiretap \r\nwith law enforcement, intelligence, protective, immigration, \r\nnational defense, or national security personnel for use only \r\nas necessary in the conduct of that person's official duties \r\nsubject to any limitations on the unauthorized disclosure of \r\nsuch information. The language in the USA PATRIOT Act is \r\nsimilar to section 103 of H.R. 2975, the PATRIOT Act that the \r\nHouse Judiciary Committee reported favorably with unanimous \r\nconsent.\r\n While some argued that the Committee should require similar \r\nnotice to a court with regard to section 203(d), which \r\nauthorizes the sharing of information from a criminal \r\ninvestigation, the Committee concluded that such a change would \r\neffectively eliminate the ability of law enforcement and anti-\r\nterrorism task forces--such as the Joint Terrorism Task Forces \r\n(JTTFs)--to operate. Much of that information used by these \r\ntask forces is not under a court order requiring notice. To \r\nrequire notice defeats the purpose of section 203(d) and would \r\ncreate a statutory ``wall'' preventing vital information from \r\nbeing shared.\r\n\r\nSection 7. Duration of FISA of Non-United States persons\r\n\r\n Prior to enactment of the USA PATRIOT Act, the Government \r\nhad 90 days to carry out surveillance and 45 days to conduct a \r\nphysical search under a FISA court order before seeking an \r\nextension. Because it often takes longer than these established \r\nperiods to get on the premises or to conduct electronic \r\nsurveillance, and the delay in applying for an extension or \r\nreapplying for a new order posed a threat to national security. \r\nTo address this problem, the USA PATRIOT Act added 30 days to \r\nthe authorized period for surveillance from 90 days to 120 \r\ndays. It also extended the period for physical searches from 45 \r\ndays to 90 days.\r\n Attorney General Gonzalez requested at the April 6, 2005, \r\nhearing before the Full Committee that section 207 of the USA \r\nPATRIOT Act be amended. He stated: ``Another important FISA-\r\nrelated Patriot Act provision is Section 207. Prior to this \r\nlaw, the Justice Department invested considerable time \r\nreturning to court to renew existing orders. Section 207 \r\nsubstantially reduced this investment of time by increasing the \r\nmaximum time duration for FISA, electronic surveillance, and \r\nphysical search orders.''\r\n The Department of Justice estimates that the enactment of \r\nsection 207 has saved nearly 60,000 attorney hours, or 30 \r\nlawyers a year's of work. According to the Justice Department, \r\nthis estimate did not account for time saved by FBI agents, \r\nadministrative staff, and the judiciary. This section of H.R. \r\n3199 would extend the maximum duration of orders for electronic \r\nsurveillance and physical search targeted against agents of \r\nforeign powers who are not United States persons. Specifically, \r\ninitial orders authorizing searches and electronic surveillance \r\nwould be for periods of up to 120 days, and renewal orders \r\nwould extend for periods of up to one year.\r\n The USA PATRIOT Act did not amend the permissible duration \r\nof orders for pen register and trap and trace surveillance \r\nunder FISA. The current duration of initial and renewal orders \r\nfor installation and use of a pen register or trap and trace \r\ndevice is for a period not to exceed 90 days. This section \r\nwould extend the maximum duration of both initial and renewal \r\norders for pen register and trap and trace surveillance, in \r\ncases where the Government certified that the information \r\nlikely to be obtained is foreign intelligence information not \r\nconcerning a United States person, for a period of one year.\r\n This section would allow the United States and the Foreign \r\nIntelligence Surveillance Court to focus more scrutiny on \r\napplications for surveillance involving United States persons. \r\nThis section would also allow intelligence officials to spend \r\nmore time investigating potential terrorist or espionage \r\nactivity by non-U.S. persons, rather than wasting valuable time \r\nreturning to the Foreign Intelligence Surveillance Court to \r\nextend surveillance against such persons that had already been \r\nauthorized. Indeed, the Department of Justice estimates that \r\nhad these proposals been included in the USA PATRIOT Act, the \r\nDepartment would have saved 25,000 attorney hours. These ideas \r\nwere specifically endorsed in the recent report of the WMD \r\nCommission, which said that the amendments would allow the \r\nDepartment both to ``focus their attention where it is most \r\nneeded'' and maintain the current level of oversight paid to \r\ncases implicating the civil liberties of Americans.\r\n\r\nSection 8. Access to certain business records under section 501 of FISA\r\n\r\n Section 7 of the bill would clarify that a recipient of a \r\n215 order may consult with a lawyer and the appropriate people \r\nnecessary to respond to the order. The section would also \r\nclarify that the FISA order may be challenged.\r\n Additionally, the language amends section 215 to clarify \r\nthat the court has discretion to issue an order. The amending \r\nlanguage states that ``if a judge finds that the application \r\nmeets the requirements of subsections (a) and (b), the judge \r\nshall enter an ex parte order as requested, or as modified, \r\napproving the release of records.'' The current language is \r\nunclear with respect to the discretion it provides to judges \r\nbecause it states that the ``judge shall'' issue an order and \r\nlater mentions that this order will only be issued ``if the \r\njudge finds that the requirements have been met.'' The language \r\ndoes not clearly specify what those requirements, so the \r\nlanguage in H.R. 3199 does.\r\n As was highlighted by the hearings held by this Committee, \r\nfor years prior to and since enactment of the USA PATRIOT Act, \r\nlaw enforcement could obtain records from all manner of \r\nbusinesses through grand jury issued subpoenas. Section 215 of \r\nthe USA PATRIOT Act created similar authority, but with more \r\nstringent requirements. Section 215 authorizes the FISA court \r\nthe discretion to issue an order for business records related \r\nto ``international terrorism and clandestine intelligence \r\nactivities.'' These judicial orders conceivably could be issued \r\nto bookstores or libraries, but section 215 does not single \r\nthem out. Section 215 has a very narrow scope that can only be \r\nused (1) ``to obtain foreign intelligence information not \r\nconcerning a United States person''; or (2) ``to protect \r\nagainst international terrorism or clandestine intelligence \r\nactivities.'' 50 U.S.C. Sec. 1861(b)(2).\r\n FBI agents cannot obtain records under section 215 unless \r\nthey receive a court order. Grand jury subpoenas, by contrast, \r\ndo not require judicial approval. Agents cannot use section 215 \r\nto unilaterally compel libraries or any other entity to turn \r\nover their records. Agents must obtain such documents only by \r\nappearing before the FISA court and convincing the court that \r\nthese business records are needed. See 50 U.S.C. Sec. 1861(b). \r\nAdditionally, section 215 goes to great lengths to preserve the \r\nFirst Amendment rights of libraries, their patrons, and other \r\naffected entities as it expressly provides that the FBI cannot \r\nconduct investigations ``of a United States person solely on \r\nthe basis of activities protected by the first amendment to the \r\nConstitution of the United States.'' 50 U.S.C. Sec. 1861(a)(2). \r\nSection 215 provides for thorough congressional oversight; \r\nevery six months, the Attorney General is required to ``fully \r\ninform'' Congress on the number of times agents have sought a \r\ncourt order under section 215, as well as the number of times \r\nsuch requests were granted, modified, or denied. See 50 U.S.C. \r\nSec. 1862.\r\n\r\nSection 9. Report relating to emergency disclosures under section 212 \r\n of the USA PATRIOT Act\r\n\r\n This section would amend section 2702 of title 18, as \r\namended by section 212 of the USA PATRIOT Act. Section 212 \r\nallowed Internet service providers to voluntarily disclose the \r\ncontents of electronic communications as well as subscriber \r\ninformation in emergencies involving immediate danger of death \r\nor serious physical injury. To address concerns that this \r\nauthority, in certain circumstances, is not subject to adequate \r\ncongressional, judicial or public oversight (particularly in \r\nsituations where the authority is used but criminal charges do \r\nnot result) the amendment would require the Attorney General to \r\nreport annually to the Judiciary Committees of the House and \r\nSenate and set forth the number of accounts subject to a \r\nsection 212 disclosure. The report would also have to summarize \r\nthe basis for disclosure in certain circumstances. The \r\nCommittee believes this would strengthen oversight on the use \r\nof thisauthority without undermining important law enforcement \r\nprerogatives, and without tipping off perpetrators while simultaneously \r\npreserving the vitality of this life saving authority.\r\n\r\nSection 10. Specificity and notification for roving surveillance under \r\n the Foreign Intelligence Surveillance Act\r\n\r\n Section 206 of the PATRIOT Act enabled use of roving \r\nwiretaps in FISA investigations. The Amendment would require \r\nintelligence investigators to notify to the FISA Court within \r\n10 days each time it initiates surveillance on a new \r\ncommunications facility pursuant to a FISA roving wiretap. By \r\nrequiring that the FISA Court be regularly informed on an \r\nongoing basis for all multi-point wiretaps, the Amendment would \r\naddress Members' concerns that the open-ended authorization to \r\nsurveil new locations could be abused. The Amendment does this \r\nby providing an extra layer of judicial review and ensures that \r\nintelligence investigators will not abuse the multi-point \r\nauthority. This approach is superior in the FISA context (where \r\nsurveillance is often long-running and subject to extensive and \r\nsophisticated counter-surveillance measures) than a proximity \r\ntest or ascertainment requirement that could endanger an \r\ninvestigation or field agents conducting the investigation.\r\n\r\nSection 11. Prohibition on planning terrorist attacks on mass \r\n transportation\r\n\r\n This section amends section 1993a of title 18 of the \r\nFederal Criminal code that protects against Terrorist attacks \r\nand other acts of violence against mass transportation systems. \r\nSection 1993 of title 18 covers attacks on mass transportation \r\nsystems but did not cover the planning for such attacks. This \r\nprovision closes that loophole and makes it a crime to \r\n``surveil, photograph, videotape, diagram, or to otherwise \r\ncollect information with the intent to plan or assist in \r\nplanning any of the acts described'' in paragraphs (1)-(5) of \r\nsection 1993a.\r\n\r\nSection 12. Enhanced review of material witness detention\r\n\r\n This section would amend section 1001 of the USA PATRIOT \r\nAct to require the Inspector General for the Department of \r\nJustice to conduct a review of material witness detentions \r\nunder section 3144 of title 18.\r\n\r\nSection 13. Forfeiture\r\n\r\n The USA PATRIOT Act amended 18 U.S.C. Sec. 981 to expressly \r\nprovide that any property used to commit or facilitate the \r\ncommission of, derived from, or otherwise involved in a Federal \r\ncrime of terrorism (as defined in 18 U.S.C. Sec. 2331) is \r\nsubject to civil forfeiture provisions. Prior to the USA \r\nPATRIOT Act, only the ``proceeds'' of a crime of terrorism were \r\nsubject to civil forfeiture provisions. This amendment would \r\nextend forfeiture to ``trafficking in nuclear, chemical, \r\nbiological, or radiological weapons technology or material,'' \r\nafter ''activities''.\r\n\r\nSection 14. Predicate offenses\r\n\r\n This section amended the current definition of ``federal \r\ncrime of terrorism,'' to include new predicate offenses. This \r\nlist of predicate offenses is referenced by other sections of \r\nthe Act, and certain provisions of the Act are made applicable \r\nto offenses appearing on this list. This section adds crimes \r\nrelating to military-type training from a foreign terrorist \r\norganization; and relating to nuclear and weapons of mass \r\ndestruction threats.\r\n\r\nSection 15. Wiretap predicates\r\n\r\n ``Title III of the Omnibus Crime Control and Safe Streets \r\nAct of 1968, 18 U.S.C. Sec. Sec. 2510-2522 (1994 & Supp. II \r\n1996), requires the government, unless otherwise permitted, to \r\nobtain an order of a court before conducting electronic \r\nsurveillance. The government is permitted to seek such orders \r\nonly in connection with the investigation of the criminal \r\noffenses enumerated in section 2516 of title 18.'' \\68\\ This \r\nsection added new ``wiretap predicates'' under section 2516 of \r\ntitle 18 of the Federal criminal code that relate to crimes of \r\nterrorism.\r\n---------------------------------------------------------------------------\r\n \\68\\ October 17, 2000, Memorandum for the Counsel, Office of \r\nIntelligence Policy and Review, U.S. DOJ.\r\n---------------------------------------------------------------------------\r\n\r\nSection 16. Defines reasonable period of delay under the USA PATRIOT \r\n Act\r\n\r\n Contrary to reports, the USA PATRIOT Act did not create \r\ndelayed notice search warrants. Delayed notice search warrants \r\nhave been used for decades prior to enactment of the USA \r\nPATRIOT Act. In 1979, the U.S. Supreme Court expressly held in \r\nDalia v. United States that the Fourth Amendment does not \r\nrequire law enforcement to give immediate notice of the \r\nexecution of a search warrant.\\69\\ The Department of Justice \r\nstates that three Federal courts of appeals had considered the \r\nconstitutionality of delayed-notice search warrants since 1979 \r\nand upheld their constitutionality.\\70\\\r\n---------------------------------------------------------------------------\r\n \\69\\ See Dalia v. United States, 441 U.S. 238 (1979); see also Katz \r\nv. United States, 389 U.S. 347 (1967).\r\n \\70\\ April 4, 2005 U.S. Department of Justice letter to Senator \r\nSpector. p. 3 citing See United States v. Freitas, 800 F.2d 1451 (9th \r\nCir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); \r\nUnited States v. Simons, 206 F.3d 392 (4th Cir. 2000).\r\n---------------------------------------------------------------------------\r\n A delayed notice search warrant simply means that a court \r\nhas expressly authorized investigations to delay notifying a \r\nsuspect that a search warrant has been executed (i.e., a court-\r\nordered search has occurred). The search warrant is the same \r\nregardless of when the suspect receives notice. Thus, before a \r\nsearch warrant is issued, whether notice is delayed or not, a \r\nFederal judge must find that there is probable cause to believe \r\nthe property to be searched or seized constitutes evidence of a \r\ncriminal offense.\r\n Congress included section 213 in the USA PATRIOT Act to \r\ncreate a uniform nationwide standard for the issuance of these \r\nwarrants. Under section 213 there are limited circumstances \r\nwhen a court may delay notice. These circumstances are the same \r\npredicate circumstances permitted in an application for \r\ndelaying notice in a search warrant for stored communications \r\nunder section 2705(a)(2) of title 18, which predated the USA \r\nPATRIOT Act. For a court to permit a delay in the notice of a \r\nsearch of a suspect's property, the investigator or prosecutor \r\nmust show that there is reasonable cause to believe that if the \r\nsuspect is notified at the same time as the search one of the \r\nfollowing situations may occur:\r\n notification would endanger the life or \r\n physical safety of an individual;\r\n notification would cause flight from \r\n prosecution;\r\n notification would result in destruction of, \r\n or tampering with, evidence;\r\n notification would result in intimidation of \r\n potential witnesses; or\r\n notification would cause serious jeopardy to \r\n an investigation or unduly delay a trial.\r\n Section 213 permits delay limited only by a reasonableness \r\nrequirement. Members are concerned by this seemingly open-ended \r\nterm. This Amendment would permit delays for up to 180 days, \r\nand would enable orders to be renewable in up to 90 day \r\nincrements.\r\n\r\n Changes in Existing Law by the Bill, as Reported\r\n\r\n In compliance with clause 3(e) of rule XIII of the Rules of \r\nthe House of Representatives, changes in existing law made by \r\nthe bill, as reported, are shown as follows (existing law \r\nproposed to be omitted is enclosed in black brackets, new \r\nmatter is printed in italic, existing law in which no changes \r\nare proposed is shown in roman):\r\n\r\nUSA PATRIOT ACT\r\n\r\n * * * * * * *\r\n\r\n\r\n\r\nTITLE II--ENHANCED SURVEILLANCE PROCEDURES\r\n\r\n * * * * * * *\r\n\r\n\r\n[SEC. 224. SUNSET.\r\n\r\n [(a) In General.--Except as provided in subsection (b), this \r\ntitle and the amendments made by this title (other than \r\nsections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, \r\n221, and 222, and the amendments made by those sections) shall \r\ncease to have effect on December 31, 2005.\r\n [(b) Exception.--With respect to any particular foreign \r\nintelligence investigation that began before the date on which \r\nthe provisions referred to in subsection (a) cease to have \r\neffect, or with respect to any particular offense or potential \r\noffense that began or occurred before the date on which such \r\nprovisions cease to have effect, such provisions shall continue \r\nin effect.]\r\n\r\n * * * * * * *\r\n\r\n\r\n TITLE X--MISCELLANEOUS\r\n\r\nSEC. 1001. REVIEW OF THE DEPARTMENT OF JUSTICE.\r\n\r\n The Inspector General of the Department of Justice shall \r\ndesignate one official who shall--\r\n (1)(A) review information and receive complaints \r\n alleging abuses of civil rights and civil liberties by \r\n employees and officials of the Department of Justice, \r\n and (B) review detentions of persons under section 3144 \r\n of title 18, United States Code, including their \r\n length, conditions of access to counsel, frequency of \r\n access to counsel, offense at issue, and frequency of \r\n appearance before a grand jury;\r\n\r\n * * * * * * *\r\n\r\n ---------- \r\n\r\n\r\nFOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978\r\n\r\n * * * * * * *\r\n\r\n\r\n\r\n TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN \r\nINTELLIGENCE PURPOSES\r\n\r\n * * * * * * *\r\n\r\n\r\n DESIGNATION OF JUDGES\r\n\r\n Sec. 103. (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (e)(1) Three judges designated under subsection (a) who \r\nreside within 20 miles of the District of Columbia, or if all \r\nof such judges are unavailable, other judges of the court \r\nestablished under subsection (a) as may be designated by the \r\nPresiding Judge of such court (who is designated by the Chief \r\nJustice of the United States from among the judges of the \r\ncourt), shall comprise a petition review panel which shall have \r\njurisdiction to review petitions filed pursuant to section \r\n501(f)(1).\r\n (2) Not later than 60 days after the date of the enactment of \r\nthe USA PATRIOT and Terrorism Prevention Reauthorization Act of \r\n2005, the court established under subsection (a) shall develop \r\nand issue procedures for the review of petitions filed pursuant \r\nto section 501(f)(1) by the panel established under paragraph \r\n(1). Such procedures shall provide that review of a petition \r\nshall be conducted ex parte and in camera and shall also \r\nprovide for the designation of an Acting Presiding Judge.\r\n\r\n * * * * * * *\r\n\r\n\r\n ISSUANCE OF AN ORDER\r\n\r\n Sec. 105. (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (c) An order approving an electronic surveillance under this \r\nsection shall--\r\n (1) * * *\r\n (2) direct--\r\n (A) * * *\r\n (B) that, upon the request of the applicant, \r\n a specified communication or other common \r\n carrier, landlord, custodian, or other \r\n specified person, or in circumstances [where \r\n the Court finds] where the Court finds, based \r\n upon specific facts provided in the \r\n application, that the actions of the target of \r\n the application may have the effect of \r\n thwarting the identification of a specified \r\n person, such other persons, furnish the \r\n applicant forthwith all information, \r\n facilities, or technical assistance necessary \r\n to accomplish the electronic surveillance in \r\n such a manner as will protect its secrecy and \r\n produce a minimum of interference with the \r\n services that such carrier, landlord, \r\n custodian, or other person is providing that \r\n target of electronic surveillance;\r\n (C) that such carrier, landlord, custodian, \r\n or other person maintain under security \r\n procedures approved by the Attorney General and \r\n the Director of National Intelligence any \r\n records concerning the surveillance or the aid \r\n furnished that such person wishes to retain; \r\n [and]\r\n (D) that the applicant compensate, at the \r\n prevailing rate, such carrier, landlord, \r\n custodian, or other person for furnishing such \r\n aid[.]; and\r\n (E) that, in the case of electronic \r\n surveillance directed at a facility or place \r\n that is not known at the time the order is \r\n issued, the applicant shall notify a judge \r\n having jurisdiction under section 103 within 10 \r\n days after electronic surveillance begins to be \r\n directed at a new facility or place, and such \r\n notice shall contain a statement of the facts \r\n and circumstances relied upon by the applicant \r\n to justify the belief that the facility or \r\n place at which the electronic surveillance is \r\n or was directed is being used, or is about to \r\n be used, by the target of electronic \r\n surveillance.\r\n\r\n * * * * * * *\r\n\r\n (e)(1) An order issued under this section may approve an \r\nelectronic surveillance for the period necessary to achieve its \r\npurpose, or for ninety days, whichever is less, except that (A) \r\nan order under this section shall approve an electronic \r\nsurveillance targeted against a foreign power, as defined in \r\nsection 101(a), (1), (2), or (3), for the period specified in \r\nthe application or for one year, whichever is less, and (B) an \r\norder under this Act for a surveillance targeted against an \r\nagent of a foreign power[, as defined in section 101(b)(1)(A)] \r\nwho is not a United States person may be for the period \r\nspecified in the application or for 120 days, whichever is \r\nless.\r\n (2) Extensions of an order issued under this title may be \r\ngranted on the same basis as an original order upon an \r\napplication for an extension and new findings made in the same \r\nmanner as required for an original order, except that (A) an \r\nextension of an order under this Act for a surveillance \r\ntargeted against a foreign power, a defined in section 101(a) \r\n(5) or (6), or against a foreign power as defined in section \r\n101(a)(4) that is not a United States person, may be for a \r\nperiod not to exceed one year if the judge finds probable cause \r\nto believe that no communication of any individual United \r\nStates person will be acquired during the period, and (B) an \r\nextension of an order under this Act for a surveillance \r\ntargeted against an agent of a foreign power [as defined in \r\nsection 101(b)(1)(A)] who is not a United States person may be \r\nfor a period not to exceed 1 year.\r\n\r\n * * * * * * *\r\n\r\n\r\n TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN \r\nINTELLIGENCE PURPOSES\r\n\r\n * * * * * * *\r\n\r\n\r\n ISSUANCE OF AN ORDER\r\n\r\n Sec. 304. (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (d)(1) An order issued under this section may approve a \r\nphysical search for the period necessary to achieve its \r\npurpose, or for 90 days, whichever is less, except that (A) an \r\norder under this section shall approve a physical search \r\ntargeted against a foreign power, as defined in paragraph (1), \r\n(2), or (3) of section 101(a), for the period specified in the \r\napplication or for one year, whichever is less, and (B) an \r\norder under this section for a physical search targeted against \r\nan agent of a foreign power [as defined in section \r\n101(b)(1)(A)] who is not a United States person may be for the \r\nperiod specified in the application or for 120 days, whichever \r\nis less.\r\n (2) Extensions of an order issued under this title may be \r\ngranted on the same basis as the original order upon an \r\napplication for an extension and new findings made in the same \r\nmanner as required for the original order, except that an \r\nextension of an order under this Act for a physical search \r\ntargeted against a foreign power, as defined in section 101(a) \r\n(5) or (6), or against a foreign power, as defined in section \r\n101(a)(4), that is not a United States person, or against an \r\nagent of a foreign power [as defined in section 101(b)(1)(A)] \r\nwho is not a United States person, may be for a period not to \r\nexceed one year if the judge finds probable cause to believe \r\nthat no property of any individual United States person will be \r\nacquired during the period.\r\n\r\n * * * * * * *\r\n\r\n\r\n TITLE IV--PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN \r\nINTELLIGENCE PURPOSES\r\n\r\n * * * * * * *\r\n\r\n\r\n PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE AND \r\n INTERNATIONAL TERRORISM INVESTIGATIONS\r\n\r\n Sec. 402. (a) * * *\r\n\r\n * * * * * * *\r\n\r\n [(e) An] (e)(1) Except as provided in paragraph (2), an order \r\nissued under this section shall authorize the installation and \r\nuse of a pen register or trap and trace device for a period not \r\nto exceed 90 days. Extensions of such an order may be granted, \r\nbut only upon an application for an order under this section \r\nand upon the judicial finding required by subsection (d). The \r\nperiod of extension shall be for a period not to exceed 90 \r\ndays.\r\n (2) In the case of an application under subsection (c) where \r\nthe applicant has certified that the information likely to be \r\nobtained is foreign intelligence information not concerning a \r\nUnited States person, an order, or an extension of an order, \r\nunder this section may be for a period not to exceed one year.\r\n\r\n * * * * * * *\r\n\r\n\r\n TITLE V--ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE \r\n PURPOSES\r\n\r\nSEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE \r\n AND INTERNATIONAL TERRORISM INVESTIGATIONS.\r\n\r\n (a) * * *\r\n (b) Each application under this section--\r\n (1) * * *\r\n (2) shall specify that the records concerned are \r\n sought for an authorized investigation conducted in \r\n accordance with subsection (a)(2) [to obtain foreign \r\n intelligence information not concerning a United States \r\n person or to protect against international terrorism or \r\n clandestine intelligence activities.] and that the \r\n information likely to be obtained from the tangible \r\n things is reasonably expected to be (A) foreign \r\n intelligence information not concerning a United States \r\n person, or (B) relevant to an ongoing investigation to \r\n protect against international terrorism or clandestine \r\n intelligence activities.\r\n [(c)(1) Upon an application made pursuant to this section, \r\nthe judge shall enter an ex parte order as requested, or as \r\nmodified, approving the release of records if the judge finds \r\nthat the application meets the requirements of this section.]\r\n (c)(1) Upon an application made pursuant to this section, if \r\nthe judge finds that the application meets the requirements of \r\nsubsections (a) and (b), the judge shall enter an ex parte \r\norder as requested, or as modified, approving the release of \r\nrecords.\r\n\r\n * * * * * * *\r\n\r\n [(d) No person shall disclose to any other person (other than \r\nthose persons necessary to produce the tangible things under \r\nthis section) that the Federal Bureau of Investigation has \r\nsought or obtained tangible things under this section.]\r\n (d)(1) No person shall disclose to any person (other than a \r\nqualified person) that the United States has sought or obtained \r\ntangible things under this section.\r\n (2) An order under this section shall notify the person to \r\nwhom the order is directed of the nondisclosure requirement \r\nunder paragraph (1).\r\n (3) Any person to whom an order is directed under this \r\nsection who discloses that the United States has sought to \r\nobtain tangible things under this section to a qualified person \r\nwith respect to the order shall inform such qualified person of \r\nthe nondisclosure requirement under paragraph (1) and that such \r\nqualified person is also subject to such nondisclosure \r\nrequirement.\r\n (4) A qualified person shall be subject to any nondisclosure \r\nrequirement applicable to a person to whom an order is directed \r\nunder this section in the same manner as such person.\r\n (5) In this subsection, the term ``qualified person'' means--\r\n (A) any person necessary to produce the tangible \r\n things pursuant to an order under this section; or\r\n (B) an attorney to obtain legal advice with respect \r\n to an order under this section.\r\n\r\n * * * * * * *\r\n\r\n (f)(1) A person receiving an order to produce any tangible \r\nthing under this section may challenge the legality of that \r\norder by filing a petition in the panel established by section \r\n103(e)(1). The Presiding Judge shall conduct an initial review \r\nof the petition. If the Presiding Judge determines that the \r\npetition is frivolous, the Presiding Judge shall immediately \r\ndeny the petition and promptly provide a written statement of \r\nthe reasons for the determination for the record. If the \r\nPresiding Judge determines that the petition is not frivolous, \r\nthe Presiding Judge shall immediately assign the petition to \r\none of the judges serving on such panel. The assigned judge \r\nshall promptly consider the petition in accordance with \r\nprocedures developed and issued pursuant to section 103(e)(2). \r\nThe judge considering the petition may modify or set aside the \r\norder only if the judge finds that the order does not meet the \r\nrequirements of this section or is otherwise unlawful. If the \r\njudge does not modify or set aside the order, the judge shall \r\nimmediately affirm the order and order the recipient to comply \r\ntherewith. A petition for review of a decision to affirm, \r\nmodify, or set aside an order by the United States or any \r\nperson receiving such order shall be to the court of review \r\nestablished under section 103(b), which shall have jurisdiction \r\nto consider such petitions. The court of review shall \r\nimmediately provide for the record a written statement of the \r\nreasons for its decision and, on petition of the United States \r\nor any person receiving such order for writ of certiorari, the \r\nrecord shall be transmitted under seal to the Supreme Court, \r\nwhich shall have jurisdiction to review such decision.\r\n (2) Judicial proceedings under this subsection shall be \r\nconcluded as expeditiously as possible. The judge considering a \r\npetition filed under this subsection shall provide for the \r\nrecord a written statement of the reasons for the decision. The \r\nrecord of proceedings, including petitions filed, orders \r\ngranted, and statements of reasons for decision, shall be \r\nmaintained under security measures established by the Chief \r\nJustice of the United States in consultation with the Attorney \r\nGeneral and the Director of National Intelligence.\r\n (3) All petitions under this subsection shall be filed under \r\nseal, and the court, upon the government's request, shall \r\nreview any government submission, which may include classified \r\ninformation, as well as the government's application and \r\nrelated materials, ex parte and in camera.\r\n\r\n[Effective December 31, 2015, section 3(b) of H.R. 3199 as reported by \r\nthe Committee on the Judiciary, provides that the Foreign Intelligence \r\n Surveillance Act of 1978 is amended so that sections 501, 502, and \r\n 105(c)(2) read as they read on October 25, 2001.]\r\n\r\n ISSUANCE OF AN ORDER\r\n\r\n Sec. 105. (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (c) An order approving an electronic surveillance under this \r\nsection shall--\r\n (1) * * *\r\n (2) direct--\r\n (A) that the minimization procedures be \r\n followed;\r\n (B) that, upon the request of the applicant, \r\n a specified communication or other common \r\n carrier, landlord, custodian, or other \r\n specified person furnish the applicant \r\n forthwith all information, facilities, or \r\n technical assistance necessary to accomplish \r\n the electronic surveillance in such a manner as \r\n will protect its secrecy and produce a minimum \r\n of interference with the services that such \r\n carrier, landlord, custodian, or other person \r\n is providing that target of electronic \r\n surveillance;\r\n (C) that such carrier, landlord, custodian, \r\n or other person maintain under security \r\n procedures approved by the Attorney General and \r\n the Director of National Intelligence any \r\n records concerning the surveillance or the aid \r\n furnished that such person wishes to retain; \r\n and\r\n (D) that the applicant compensate, at the \r\n prevailing rate, such carrier, landlord, \r\n custodian, or other person for furnishing such \r\n aid.\r\n\r\n * * * * * * *\r\n\r\n\r\nSEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE \r\n AND INTERNATIONAL TERRORISM INVESTIGATIONS.\r\n\r\n (a)(1) The Director of the Federal Bureau of Investigation or \r\na designee of the Director (whose rank shall be no lower than \r\nAssistant Special Agent in Charge) may make an application for \r\nan order requiring the production of any tangible things \r\n(including books, records, papers, documents, and other items) \r\nfor an investigation to protect against international terrorism \r\nor clandestine intelligence activities, provided that such \r\ninvestigation of a United States person is not conducted solely \r\nupon the basis of activities protected by the first amendment \r\nto the Constitution.\r\n (2) An investigation conducted under this section shall--\r\n (A) be conducted under guidelines approved by the \r\n Attorney General under Executive Order 12333 (or a \r\n successor order); and\r\n (B) not be conducted of a United States person solely \r\n upon the basis of activities protected by the first \r\n amendment to the Constitution of the United States.\r\n (b) Each application under this section--\r\n (1) shall be made to--\r\n (A) a judge of the court established by \r\n section 103(a); or\r\n (B) a United States Magistrate Judge under \r\n chapter 43 of title 28, United States Code, who \r\n is publicly designated by the Chief Justice of \r\n the United States to have the power to hear \r\n applications and grant orders for the \r\n production of tangible things under this \r\n section on behalf of a judge of that court; and\r\n (2) shall specify that the records concerned are \r\n sought for an authorized investigation conducted in \r\n accordance with subsection (a)(2) to obtain foreign \r\n intelligence information not concerning a United States \r\n person or to protect against international terrorism or \r\n clandestine intelligence activities.\r\n (c)(1) Upon an application made pursuant to this section, the \r\njudge shall enter an ex parte order as requested, or as \r\nmodified, approving the release of records if the judge finds \r\nthat the application meets the requirements of this section.\r\n (2) An order under this subsection shall not disclose that it \r\nis issued for purposes of an investigation described in \r\nsubsection (a).\r\n (d) No person shall disclose to any other person (other than \r\nthose persons necessary to produce the tangible things under \r\nthis section) that the Federal Bureau of Investigation has \r\nsought or obtained tangible things under this section.\r\n (e) A person who, in good faith, produces tangible things \r\nunder an order pursuant to this section shall not be liable to \r\nany other person for such production. Such production shall not \r\nbe deemed to constitute a waiver of any privilege in any other \r\nproceeding or context.\r\n\r\nSEC. 502. CONGRESSIONAL OVERSIGHT.\r\n\r\n (a) On a semiannual basis, the Attorney General shall fully \r\ninform the Permanent Select Committee on Intelligence of the \r\nHouse of Representatives and the Select Committee on \r\nIntelligence of the Senate concerning all requests for the \r\nproduction of tangible things under section 402.\r\n (b) On a semiannual basis, the Attorney General shall provide \r\nto the Committees on the Judiciary of the House of \r\nRepresentatives and the Senate a report setting forth with \r\nrespect to the preceding 6-month period--\r\n (1) the total number of applications made for orders \r\n approving requests for the production of tangible \r\n things under section 402; and\r\n (2) the total number of such orders either granted, \r\n modified, or denied.\r\n ---------- \r\n\r\n\r\nIntelligence Reform and Terrorism Prevention Act of 2004\r\n\r\n * * * * * * *\r\n\r\n\r\n TITLE VI--TERRORISM PREVENTION\r\n\r\n Subtitle A--Individual Terrorists as Agents of Foreign Powers\r\n\r\n SEC. 6001. INDIVIDUAL TERRORISTS AS AGENTS OF FOREIGN \r\nPOWERS.\r\n [(a) In General.--Section] Section 101(b)(1) of the Foreign \r\nIntelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) is \r\namended by adding at the end the following new subparagraph:\r\n ``(C) engages in international terrorism or \r\n activities in preparation therefore; or''.\r\n [(b) Sunset.--The amendment made by subsection (a) shall be \r\nsubject to the sunset provision in section 224 of Public Law \r\n107-56 (115 Stat. 295), including the exception provided in \r\nsubsection (b) of such section 224.]\r\n\r\n * * * * * * *\r\n\r\n\r\nSubtitle E--Criminal History Background Checks\r\n\r\n * * * * * * *\r\n\r\n\r\n SEC. 6603. ADDITIONS TO OFFENSE OF PROVIDING MATERIAL \r\nSUPPORT TO TERRORISM.\r\n (a) * * *\r\n\r\n * * * * * * *\r\n\r\n [(g) Sunset Provision.--\r\n [(1) In general.--Except as provided in paragraph \r\n (2), this section and the amendments made by this \r\n section shall cease to be effective on December 31, \r\n 2006.\r\n [(2) Exception.--This section and the amendments made \r\n by this section shall continue in effect with respect \r\n to any particular offense that--\r\n [(A) is prohibited by this section or \r\n amendments made by this section; and\r\n [(B) began or occurred before December 31, \r\n 2006.]\r\n\r\n * * * * * * *\r\n\r\n ---------- \r\n\r\n\r\nTITLE 18, UNITED STATES CODE\r\n\r\n * * * * * * *\r\n\r\n\r\nPART I--CRIMES\r\n\r\n * * * * * * *\r\n\r\n\r\nCHAPTER 46--FORFEITURE\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 981. Civil forfeiture\r\n\r\n (a)(1) The following property is subject to forfeiture to the \r\nUnited States:\r\n (A) * * *\r\n (B) Any property, real or personal, within the \r\n jurisdiction of the United States, constituting, \r\n derived from, or traceable to, any proceeds obtained \r\n directly or indirectly from an offense against a \r\n foreign nation, or any property used to facilitate such \r\n an offense, if the offense--\r\n (i) involves trafficking in nuclear, chemical, \r\n biological, or radiological weapons technology or \r\n material, or the manufacture, importation, sale, or \r\n distribution of a controlled substance (as that term is \r\n defined for purposes of the Controlled Substances Act), \r\n or any other conduct described in section \r\n 1956(c)(7)(B);\r\n\r\n * * * * * * *\r\n\r\n\r\nCHAPTER 97--RAILROADS\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 1993. Terrorist attacks and other acts of violence against mass \r\n transportation systems\r\n\r\n (a) General prohibitions.--Whoever willfully--\r\n (1) * * *\r\n\r\n * * * * * * *\r\n\r\n (7) conveys or causes to be conveyed false \r\n information, knowing the information to be false, \r\n concerning an attempt or alleged attempt being made or \r\n to be made, to do any act which would be a crime \r\n prohibited by this subsection; [or]\r\n (8) surveils, photographs, videotapes, diagrams, or \r\n otherwise collects information with the intent to plan \r\n or assist in planning any of the acts described in the \r\n paragraphs (1) through (7); or\r\n [(8)] (9) attempts, threatens, or conspires to do any \r\n of the aforesaid acts,\r\n\r\n * * * * * * *\r\n\r\n\r\nCHAPTER 113B--TERRORISM\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 2332b. Acts of terrorism transcending national boundaries\r\n\r\n (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (g) Definitions.--As used in this section--\r\n (1) * * *\r\n\r\n * * * * * * *\r\n\r\n (5) the term ``Federal crime of terrorism'' means an \r\n offense that--\r\n (A) * * *\r\n (B) is a violation of--\r\n (i) section 32 (relating to \r\n destruction of aircraft or aircraft \r\n facilities), 37 (relating to violence \r\n at international airports), 81 \r\n (relating to arson within special \r\n maritime and territorial jurisdiction), \r\n 175 or 175b (relating to biological \r\n weapons), 175c (relating to variola \r\n virus), 229 (relating to chemical \r\n weapons), subsection (a), (b), (c), or \r\n (d) of section 351 (relating to \r\n congressional, cabinet, and Supreme \r\n Court assassination and kidnaping), 831 \r\n (relating to nuclear materials), 832 \r\n (relating to nuclear and weapons of \r\n mass destruction threats), 832 \r\n (relating to participation in nuclear \r\n and weapons of mass destruction threats \r\n to the United States) 842(m) or (n) \r\n (relating to plastic explosives), \r\n 844(f)(2) or (3) (relating to arson and \r\n bombing of Government property risking \r\n or causing death), 844(i) (relating to \r\n arson and bombing of property used in \r\n interstate commerce), 930(c) (relating \r\n to killing or attempted killing during \r\n an attack on a Federal facility with a \r\n dangerous weapon), 956(a)(1) (relating \r\n to conspiracy to murder, kidnap, or \r\n maim persons abroad), 1030(a)(1) \r\n (relating to protection of computers), \r\n 1030(a)(5)(A)(i) resulting in damage as \r\n defined in 1030(a)(5)(B)(ii) through \r\n (v) (relating to protection of \r\n computers), 1114 (relating to killing \r\n or attempted killing of officers and \r\n employees of the United States), 1116 \r\n (relating to murder or manslaughter of \r\n foreign officials, official guests, or \r\n internationally protected persons), \r\n 1203 (relating to hostage taking), 1361 \r\n (relating to government property or \r\n contracts), 1362 (relating to \r\n destruction of communication lines, \r\n stations, or systems), 1363 (relating \r\n to injury to buildings or property \r\n within special maritime and territorial \r\n jurisdiction of the United States), \r\n 1366(a) (relating to destruction of an \r\n energy facility), 1751(a), (b), (c), or \r\n (d) (relating to Presidential and \r\n Presidential staff assassination and \r\n kidnaping), 1992 (relating to wrecking \r\n trains), 1993 (relating to terrorist \r\n attacks and other acts of violence \r\n against mass transportation systems), \r\n 2155 (relating to destruction of \r\n national defense materials, premises, \r\n or utilities), 2156 (relating to \r\n national defense material, premises, or \r\n utilities), 2280 (relating to violence \r\n against maritime navigation), 2281 \r\n (relating to violence against maritime \r\n fixed platforms), 2332 (relating to \r\n certain homicides and other violence \r\n against United States nationals \r\n occurring outside of the United \r\n States), 2332a (relating to use of \r\n weapons of mass destruction), 2332b \r\n (relating to acts of terrorism \r\n transcending national boundaries), \r\n 2332f (relating to bombing of public \r\n places and facilities), 2332g (relating \r\n to missile systems designed to destroy \r\n aircraft), 2332h (relating to \r\n radiological dispersal devices), 2339 \r\n (relating to harboring terrorists), \r\n 2339A (relating to providing material \r\n support to terrorists), 2339B (relating \r\n to providing material support to \r\n terrorist organizations), 2339C \r\n (relating to financing of terrorism, \r\n 2339D (relating to military-type \r\n training from a foreign terrorist \r\n organization), or 2340A (relating to \r\n torture) of this title;\r\n\r\n * * * * * * *\r\n\r\n\r\n CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND \r\nINTERCEPTION OF ORAL COMMUNICATIONS\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 2516. Authorization for interception of wire, oral, or electronic \r\n communications\r\n\r\n (1) The Attorney General, Deputy Attorney General, Associate \r\nAttorney General, or any Assistant Attorney General, any acting \r\nAssistant Attorney General, or any Deputy Assistant Attorney \r\nGeneral or acting Deputy Assistant Attorney General in the \r\nCriminal Division specially designated by the Attorney General, \r\nmay authorize an application to a Federal judge of competent \r\njurisdiction for, and such judge may grant in conformity with \r\nsection 2518 of this chapter an order authorizing or approving \r\nthe interception of wire or oral communications by the Federal \r\nBureau of Investigation, or a Federal agency having \r\nresponsibility for the investigation of the offense as to which \r\nthe application is made, when such interception may provide or \r\nhas provided evidence of--\r\n (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (c) any offense which is punishable under the \r\n following sections of this title: section 37 (relating \r\n to violence at international airports), section 175b \r\n (relating to biological agents or toxins) section 201 \r\n (bribery of public officials and witnesses), section \r\n 215 (relating to bribery of bank officials), section \r\n 224 (bribery in sporting contests), subsection (d), \r\n (e), (f), (g), (h), or (i) of section 844 (unlawful use \r\n of explosives), section 1032 (relating to concealment \r\n of assets), section 1084 (transmission of wagering \r\n information), section 751 (relating to escape), section \r\n 832 (relating to nuclear and weapons of mass \r\n destruction threats), section 842 (relating to \r\n explosive materials), section 930 (relating to \r\n possession of weapons in Federal facilities), section \r\n 1014 (relating to loans and credit applications \r\n generally; renewals and discounts), section 1114 \r\n (relating to officers and employees of the United \r\n States), section 1116 (relating to protection of \r\n foreign officials), sections 1361-1363 (relating to \r\n damage to government buildings and communications), \r\n section 1366 (relating to destruction of an energy \r\n facility), sections 1503, 1512, and 1513 (influencing \r\n or injuring an officer, juror, or witness generally), \r\n section 1510 (obstruction of criminal investigations), \r\n section 1511 (obstruction of State or local law \r\n enforcement), section 1591 (sex trafficking of children \r\n by force, fraud, or coercion), section 1751 \r\n (Presidential and Presidential staff assassination, \r\n kidnapping, and assault), section 1951 (interference \r\n with commerce by threats or violence), section 1952 \r\n (interstate and foreign travel or transportation in aid \r\n of racketeering enterprises), section 1958 (relating to \r\n use of interstate commerce facilities in the commission \r\n of murder for hire), section 1959 (relating to violent \r\n crimes in aid of racketeering activity), section 1954 \r\n (offer, acceptance, or solicitation to influence \r\n operations of employee benefit plan), section 1955 \r\n (prohibition of business enterprises of gambling), \r\n section 1956 (laundering of monetary instruments), \r\n section 1957 (relating to engaging in monetary \r\n transactions in property derived from specified \r\n unlawful activity), section 659 (theft from interstate \r\n shipment), section 664 (embezzlement from pension and \r\n welfare funds), section 1343 (fraud by wire, radio, or \r\n television), section 1344 (relating to bank fraud), \r\n section 1993 (relating to terrorist attacks against \r\n mass transportation), sections 2155 and 2156 (relating \r\n to national-defense utilities), sections 2280 and 2281 \r\n (relating to violence against maritime navigation), \r\n sections 2251 and 2252 (sexual exploitation of \r\n children), section 2251A (selling or buying of \r\n children), section 2252A (relating to material \r\n constituting or containing child pornography), section \r\n 1466A (relating to child obscenity), section 2260 \r\n (production of sexually explicit depictions of a minor \r\n for importation into the United States), sections 2421, \r\n 2422, 2423, and 2425 (relating to transportation for \r\n illegal sexual activity and related crimes),sections \r\n 2312, 2313, 2314, and 2315 (interstate transportation \r\n of stolen property), section 2321 (relating to \r\n trafficking in certain motor vehicles or motor vehicle \r\n parts), section 2340A (relating to torture), section \r\n 1203 (relating to hostage taking), section 1029 \r\n (relating to fraud and related activity in connection \r\n with access devices), section 3146 (relating to penalty \r\n for failure to appear), section 3521(b)(3) (relating to \r\n witness relocation and assistance), section 32 \r\n (relating to destruction of aircraft or aircraft \r\n facilities), section 38 (relating to aircraft parts \r\n fraud), section 1963 (violations with respect to \r\n racketeer influenced and corrupt organizations), \r\n section 115 (relating to threatening or retaliating \r\n against a Federal official), section 1341 (relating to \r\n mail fraud), a felony violation of section 1030 \r\n (relating to computer fraud and abuse), section 351 \r\n (violations with respect to congressional, Cabinet, or \r\n Supreme Court assassinations, kidnapping, and assault), \r\n section 831 (relating to prohibited transactions \r\n involving nuclear materials), section 33 (relating to \r\n destruction of motor vehicles or motor vehicle \r\n facilities), section 175 (relating to biological \r\n weapons), section 175c (relating to variola virus), \r\n section 1992 (relating to wrecking trains), a felony \r\n violation of section 1028 (relating to production of \r\n false identification documentation), section 1425 \r\n (relating to the procurement of citizenship or \r\n nationalization unlawfully), section 1426 (relating to \r\n the reproduction of naturalization or citizenship \r\n papers), section 1427 (relating to the sale of \r\n naturalization or citizenship papers), section 1541 \r\n (relating to passport issuance without authority), \r\n section 1542 (relating to false statements in passport \r\n applications), section 1543 (relating to forgery or \r\n false use of passports), section 1544 (relating to \r\n misuse of passports), or section 1546 (relating to \r\n fraud and misuse of visas, permits, and other \r\n documents);\r\n\r\n * * * * * * *\r\n\r\n (p) a felony violation of section 1028 (relating to \r\n production of false identification documents), section \r\n 1542 (relating to false statements in passport \r\n applications), section 1546 (relating to fraud and \r\n misuse of visas, permits, and other documents, section \r\n 1028A (relating to aggravated identity theft)) of this \r\n title or a violation of section 274, 277, or 278 of the \r\n Immigration and Nationality Act (relating to the \r\n smuggling of aliens); or\r\n (q) any criminal violation of section 229 (relating \r\n to chemical weapons); or sections 2332, 2332a, 2332b, \r\n 2332d, 2332f, 2332g, 2332h 2339, 2339A, 2339B, or 2339C \r\n 2339D of this title (relating to terrorism); or\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 2517. Authorization for disclosure and use of intercepted wire, \r\n oral, or electronic communications\r\n\r\n (1) * * *\r\n\r\n * * * * * * *\r\n\r\n (6) Any investigative or law enforcement officer, or attorney \r\nfor the Government, who by any means authorized by this \r\nchapter, has obtained knowledge of the contents of any wire, \r\noral, or electronic communication, or evidence derived \r\ntherefrom, may disclose such contents to any other Federal law \r\nenforcement, intelligence, protective, immigration, national \r\ndefense, or national security official to the extent that such \r\ncontents include foreign intelligence or counterintelligence \r\n(as defined in section 3 of the National Security Act of 1947 \r\n(50 U.S.C. 401a)), or foreign intelligence information (as \r\ndefined in subsection (19) of section 2510 of this title), to \r\nassist the official who is to receive that information in the \r\nperformance of his official duties. Any Federal official who \r\nreceives information pursuant to this provision may use that \r\ninformation only as necessary in the conduct of that person's \r\nofficial duties subject to any limitations on the unauthorized \r\ndisclosure of such information. Within a reasonable time after \r\na disclosure of the contents of a communication under this \r\nsubsection, an attorney for the Government shall file, under \r\nseal, a notice with a judge whose order authorized or approved \r\nthe interception of that communication, stating the fact that \r\nsuch contents were disclosed and the departments, agencies, or \r\nentities to which the disclosure was made.\r\n\r\n * * * * * * *\r\n\r\n\r\n CHAPTER 121--STORED WIRE AND ELECTRONIC COMMUNICATIONS AND \r\nTRANSACTIONAL RECORDS ACCESS\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 2702. Voluntary disclosure of customer communications or records\r\n\r\n (a) * * *\r\n\r\n * * * * * * *\r\n\r\n (d) Report.--On an annual basis, the Attorney General shall \r\nsubmit to the Committees on the Judiciary of the House and the \r\nSenate a report containing--\r\n (1) the number of accounts from which the Department \r\n of Justice has received voluntary disclosures under \r\n subsection (b)(8); and\r\n (2) a summary of the basis for disclosure in those \r\n instances where--\r\n (A) voluntary disclosure under subsection \r\n (b)(8) was made to the Department of Justice; \r\n and\r\n (B) the investigation pertaining to those \r\n disclosures was closed without the filing of \r\n criminal charges.\r\n\r\n * * * * * * *\r\n\r\n\r\nPART II--CRIMINAL PROCEDURE\r\n\r\n * * * * * * *\r\n\r\n\r\nCHAPTER 205--SEARCHES AND SEIZURES\r\n\r\n * * * * * * *\r\n\r\n\r\nSec. 3103a. Additional grounds for issuing warrant\r\n\r\n (a) * * *\r\n (b) Delay.--With respect to the issuance of any warrant or \r\ncourt order under this section, or any other rule of law, to \r\nsearch for and seize any property or material that constitutes \r\nevidence of a criminal offense in violation of the laws of the \r\nUnited States, any notice required, or that may be required, to \r\nbe given may be delayed if--\r\n (1) * * *\r\n\r\n * * * * * * *\r\n\r\n (3) the warrant provides for the giving of such \r\n notice within a reasonable period [of its] , which \r\n shall not be more than 180 days, after its execution, \r\n which period may thereafter be extended for additional \r\n periods of not more than 90 days each by the court for \r\n good cause shown.\r\n\r\n * * * * * * *\r\n\r\n\r\n Markup Transcript\r\n\r\n\r\n\r\n BUSINESS MEETING\r\n\r\n JULY 13, 2005\r\n\r\n House of Representatives,\r\n Committee on the Judiciary,\r\n Washington, DC.\r\n The Committee met, pursuant to notice, at 10:05 a.m., in \r\nRoom 2141, Rayburn House Office Building, Hon. F. James \r\nSensenbrenner, Jr. [Chairman of the Committee] presiding.\r\n Chairman Sensenbrenner. The Committee will be in order. A \r\nworking quorum is present, and without objection, the Chair is \r\nauthorized to declare recesses of the Committee during \r\nconsideration of noticed bills. Hearing none, so ordered.\r\n Pursuant to notice, I now call----\r\n Mr. Watt. Mr. Chairman, we are having trouble hearing you.\r\n Chairman Sensenbrenner. Excuse me. Pursuant to notice, I \r\nnow call up the bill H.R. 3199, the ``USA PATRIOT and Terrorism \r\nPrevention Reauthorization Act of 2005,'' for purposes of \r\nmarkup and move its favorable recommendation to the House. \r\nWithout objection, the bill will be considered as read and open \r\nfor amendment at any point. Hearing no objection, so ordered.\r\n [The bill, H.R. 3199, follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The Chair now recognizes himself \r\nfor 5 minutes to explain the bill.\r\n Today we are marking up H.R. 3199, the ``USA PATRIOT and \r\nTerrorism Prevention Reauthorization Act of 2005,'' in the wake \r\nof deadly and tragic terrorist attacks. Last week, innocent \r\npeople in London were murdered in a series of coordinated \r\nattacks executed with ruthless precision. And last year, Spain \r\nwas victimized by similar acts of terrorism directed at mass \r\ntransit. We pray for the innocent victims and their families of \r\nthese recent attacks and stand firmly with them in their time \r\nof grief.\r\n Though the terrorists' goal is to shake the foundation of \r\nour democracies, these heinous acts have only strengthened our \r\nresolve to defeat them. I believe that both Congress and the \r\nBush administration deserve credit for reacting quickly to take \r\nthe terrorist threat head on by providing the hard-working men \r\nand women of law enforcement, the intelligence community, and \r\nour armed services with the tool they need to prevent another \r\nattack here at home. The PATRIOT Act was one important \r\ninitiative.\r\n While many, including myself, continue to be wary of the \r\nGovernment having any more authority than absolutely necessary, \r\nwe must view attacks as an important reminder that the specter \r\nof terrorism remains a clear and present danger to free nations \r\naround the world, and that we are still very much at war \r\nagainst an enemy that will do anything in its power to kill \r\ninnocent citizens.\r\n I strongly believe that we must not take any steps that \r\nmight compromise the ability of law enforcement to thwart \r\nfuture acts of terrorism. Accordingly, the legislation that I \r\nhave introduced and we consider here today will permanently \r\nextend the important antiterrorism tools contained in the \r\nPATRIOT Act.\r\n This bill is based upon 4 years of extensive oversight \r\nconsisting of hearing testimony, Inspector General reports, \r\nbriefings, and oversight letter. The materials on the left side \r\nof the clerk's table over there show the Committee's efforts to \r\nengage in aggressive oversight. Since April of this year alone, \r\nthe Committee has heard testimony from 35 witnesses during 11 \r\nhearings on the PATRIOT Act. That testimony and oversight has \r\ndemonstrated that the PATRIOT Act has been an effective tool \r\nagainst terrorists as well as criminals intent on harming \r\ninnocent people and, therefore, deserves to be extended \r\npermanently, subject to several modifications contained in the \r\nbill.\r\n While there should continue to be a healthy public debate \r\non how best to ensure the safety of our citizens, the security \r\nof the American people should not be subject to arbitrary \r\nexpiration dates and should not provide an excuse for divisive \r\npartisan debates or political fundraising. To address concerns \r\nthat judicial--judicial oversight is necessary when criminal \r\nwiretap information was shared with the intelligence community, \r\nthe bill would amend current law to require that an officer or \r\nattorney who makes a disclosure under this subsection within a \r\nreasonable time after that disclosure notify the court that \r\nissued the wiretap order that such information was shared.\r\n Based upon concerns expressed by the Commission on Weapons \r\nof Mass Destruction, the bill extends the duration of the \r\nForeign Intelligence Surveillance Act order for non-United \r\nStates persons. DOJ estimates that the enactment of Section 207 \r\nhas saved nearly 60,000 attorney hours or 30 lawyers a year's \r\nworth of work.\r\n Finally, this bill addresses Section 215, which has been \r\ninaccurately characterized by many and, as a result, has \r\nunnecessarily caused much public consternation. While I \r\nrecognize the good intentions of those voting to limit the \r\nauthority of Section 215, I am concerned that limitations only \r\nmake Americans more vulnerable to terrorism.\r\n This bill amends Section 215 of the PATRIOT Act to clarify \r\nthat the information likely to be obtained is reasonably \r\nexpected to be foreign intelligence information not concerning \r\na U.S. person or information relevant to an ongoing \r\ninvestigation to protect against international terrorism or \r\nclandestine intelligence activities.\r\n The legislation would also clarify that a FISA 215 order \r\nmay be challenged and that a recipient of a 215 order may \r\nconsult with the lawyer and the appropriate people necessary to \r\nrespond to the order.\r\n Finally, the bill expressly clarifies that an order will \r\nonly be issued if the judge finds that the requirements have \r\nbeen met and sets up a judicial review process that authorizes \r\nthe judge to set aside or affirm a 215 order has been changed.\r\n As Chairman of this Committee, I have made every effort to \r\nstrike an appropriate balance between liberty and security. \r\nThis bill reflects this balance and is the product of \r\ncomprehensive and bipartisan legislative consideration. I urge \r\nthat the bill be approved, and I recognize the gentleman from \r\nMichigan, Mr. Conyers, for an opening statement.\r\n Mr. Conyers. Thank you, Mr. Chairman, and I'm happy to see \r\nmy colleagues back after the strenuous All Star Game in Detroit \r\nyesterday evening, which required me to get up a 4 o'clock. But \r\nmight I ask unanimous consent for the gentlelady from Texas, \r\nMs. Jackson Lee, to speak for 1 minute out of order because she \r\nis going to be leaving to return there for some very important \r\nactivity that's going on.\r\n Chairman Sensenbrenner. Without objection.\r\n Mr. Conyers. I thank you.\r\n Ms. Jackson Lee. This is a very important day. I thank you \r\nvery much, Mr. Conyers and Mr. Chairman. Because of my 10-year \r\nmembership on the Space and Aeronautics Subcommittee of the \r\nScience Committee, I will be attending the restoration of human \r\nSpace Shuttle flight in Florida today and will be in and out \r\nand not at my desk. I recognize that our Nation is looking at a \r\nvery important step, and today, of course, that step is looking \r\nat the reauthorization of the PATRIOT Act.\r\n I look forward to the debate in the days to come, and I \r\nremind my colleagues that I know that this is a Nation of laws, \r\nbut it is also a Nation of liberty, and the PATRIOT Act must \r\nreflect that liberty.\r\n I thank my colleagues, and I ask unanimous consent that any \r\nadditional statement may be put into the record for this \r\nCommittee.\r\n I yield back.\r\n [The prepared statement of Ms. Jackson Lee follows:]\r\n \r\n \r\n Chairman Sensenbrenner. Without objection, and the Chair \r\nwill reset the clock for the gentleman from Michigan, who is \r\nrecognized for 5 minutes.\r\n Mr. Conyers. Thank you, Mr. Chairman.\r\n Members of the Committee, we begin the important \r\nreauthorization of the PATRIOT Act, but I don't think this \r\ndiscussion can proceed correctly unless we acknowledge that the \r\nPATRIOT Act that the Committee passed 36-0 was suspended and \r\npulled out of the Rules Committee and replaced with a bill that \r\nno one on the Committee that I know of had seen before it came \r\nfrom the Rules Committee. So we're working under an extremely \r\nserious abuse of process on a measure of this magnitude.\r\n Nevertheless, my comments divide into three categories: \r\nfirst of all, there's the 16 sunset provisions which we are \r\ncalled to re-examine; the second are problems with the PATRIOT \r\nAct that were not the object of sunset provisions, some of \r\nwhich we were afforded hearings, at least one, maybe two, to \r\ndeal with these problems with the PATRIOT Act; and the third \r\ncategory that I would bring to your attention, my colleagues, \r\nis the abuses of process that are not within the PATRIOT Act \r\nbut could easily be confused for being part of the PATRIOT Act, \r\nsome because of the secrecy of the way some of these things are \r\nhandled by the administration, the Department of Justice, the \r\nFBI. Sometimes you can't tell whether it's PATRIOT Act or not.\r\n So let me just point out a couple of the problems in the \r\nsunsetting provisions. Section 206 and 215 leap out at us as we \r\nreview this matter. The roving wiretaps, Section 206, which \r\nallows surveillance orders which specify neither person nor \r\nplace to be surveilled. It's a roving wiretap, a John Doe \r\nroving wiretap, and we essentially do not address this measure \r\nto my satisfaction.\r\n The second matter is the Section 215 that allows the FBI to \r\nget an order, a secret order, for anything from anyone whenever \r\nthey ask a secret court. The bill has a convoluted proposal \r\nthat falls far short of satisfactory protecting the civil \r\nliberties of our citizenry.\r\n Now, within the PATRIOT Act itself, I bring your attention \r\nto the material support statute which makes criminals out of \r\npeople who give money to charities or volunteer their services \r\nwith no intention to ever help terrorists, and if it turns out \r\nthat there is a mistake made, this helps them get prosecuted. I \r\nobject to this.\r\n Section 213, the infamous sneak-and-peek provision, which \r\ngives unprecedented authority to the Federal Bureau of \r\nInvestigation to go into a citizen's home or business without \r\ntelling him or her for indefinite periods of time. The bill \r\ndoes not satisfactorily address this matter.\r\n And then there is the national security letters, which have \r\nno judicial review, compel people to turn over sensitive \r\nrecords, and gags them from even discussing their situation \r\nwith a lawyer.\r\n We also have the problem of administrative subpoenas. \r\nAdministrative subpoenas circuit--get around the regular \r\nprocess of subpoenas in which a court reviews them, and they're \r\nissued by the Department of Justice. And so I think this is a \r\nvery big problem.\r\n May I point out in closing that the----\r\n Chairman Sensenbrenner. The gentleman's time has expired \r\nand without objection is recognized for an additional minute.\r\n Mr. Conyers. I thank the Chair.\r\n There are some non-PATRIOT Act abuses that are still--that \r\nshould be the subject of our concerns, and one is the abuse and \r\ntorture of detainees at at least three places in the Western \r\nhemisphere, and other places, actually, of violence, abuse, \r\nharassment, which violates the Geneva Convention and the \r\nConvention Against Torture.\r\n Then we have the abuse of the immigration system to deny \r\ndue process rights and indefinitely detain people within the \r\nborders; the use of racial profiling, which has rounded up \r\nthousands of Middle Eastern and Muslim men with no known effect \r\nof preventing terrorism; weeks, months later, they are \r\nreleased. They're frequently held incommunicado from their \r\nfamily or counsel. And, finally, the abuse of the material \r\nwitness statute to detain those who the Department may not \r\nhaving anything else to hold them on, and so they hold them as \r\na material witness.\r\n All of these are issues I hope we will be able to consider \r\nin the course of this markup, and I thank the Chair for the \r\nadditional time.\r\n Chairman Sensenbrenner. The time of the gentleman has once \r\nagain expired. Without objection, all members may insert \r\nopening statements in the record at this point.\r\n Are there amendments?\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, for \r\nwhat purpose do you seek recognition?\r\n Mr. Scott. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Scott. Thank you, Mr. Chairman.\r\n Mr. Chairman, recently I wrote a letter complaining about \r\nhaving a full Committee markup without a hearing on the bill or \r\na Subcommittee mark. As the gentleman from Michigan has pointed \r\nout, the last time we considered the PATRIOT Act, we considered \r\na bill, did hard work, but after all the hard work had been \r\ndone, they switched versions and we considered on the floor \r\nsomething other than what we had considered.\r\n Here we had extensive hearings in general, but none on the \r\nbill itself. There's been no opportunity for the public to have \r\ninput on the bill or to prepare amendments to the bill as \r\nintroduced.\r\n Now, it was my understanding from the Chairman of the \r\nSubcommittee that we would have hearings on the bill, and we \r\nwrote a letter--I haven't received a response. Perhaps if I \r\nyield to the gentleman from North Carolina, he could explain \r\nwhat his understanding was about a hearing on the bill after it \r\nhad been introduced. Wasn't it our understanding that there \r\nwould be a hearing? I yield.\r\n Mr. Coble. If the gentleman would yield, this is a case of \r\nfirst impression because the distinguished gentleman from \r\nVirginia and I have gotten along very harmoniously and will \r\ncontinue to do so. But, Mr. Scott, I don't recall that. I don't \r\nrecall that I indicated any subsequent hearing on this bill.\r\n You will recall, Mr. Scott and colleagues, that our \r\nSubcommittee hosted nine hearings on this matter. The full \r\nCommittee, as best I recall, Mr. Chairman, hosted two or three, \r\nI think three, giving a total of 12 hearings. And, Mr. Scott, \r\nif that was your impression, I think you misunderstood me \r\nbecause I don't recall having said that.\r\n Mr. Scott. Well, apparently I did--reclaiming my time, \r\napparently I did misunderstand because it was my understanding \r\nthat we would, after all those hearings, have a hearing on the \r\nbill. Obviously that's not the case, and, Mr. Chairman, I just \r\nwant to register my complaint that we are not having a hearing \r\nor a Subcommittee mark on a bill that is extremely complex and \r\nI think could benefit from a hearing on the bill so that the \r\npublic could have input and a Subcommittee mark so that many of \r\nthe more controversial areas could be identified. But obviously \r\nthat's not going to be the case, and we'll do the best we can \r\nunder this procedure.\r\n Mr. Nadler. Mr. Chairman?\r\n Mr. Scott. I yield back.\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. For what purpose does the gentleman \r\nfrom New York seek recognition?\r\n Mr. Nadler. Strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Nadler. Thank you.\r\n Mr. Chairman, I would like to associate--begin by \r\nassociating myself with the remarks of the gentleman from \r\nVirginia, and I believe I joined in sending that letter. But I \r\nwant to go a little further or a little differently.\r\n It's not just that we haven't had a hearing on the bill. We \r\nhad extensive hearings, and I want to commend the Chairman and \r\nthe Committee for holding extensive hearings on the general \r\nsubject matter. But the Chairman's mark, that is to say, the \r\nbill that we have before us that we're going to be dealing \r\nwith, was only made available to anyone, I think, late Friday. \r\nAnd as I said 4 years ago--and the Chairman and I engaged in a \r\ncolloquy on the floor 4 years ago on this subject--this is the \r\nkind of bill of a complex nature and a sensitive and delicate \r\nnature where we are balancing a very, very legitimate and \r\npressing and compelling need for promoting the security of the \r\npeople of this Nation with equally compelling need for \r\npreserving the liberties of the people of this Nation. And we \r\nhave to do a bill that does both and balances it to the best of \r\nour ability.\r\n And when the bill came out 4 years ago, this bill was only \r\nin print, as I recall, Wednesday at 10 o'clock, and we started \r\ndebating at 11 o'clock and voted at 1 o'clock. And I said at \r\nthat time that this is the kind of bill that, because of the \r\nsensitive balancing nature, should be available to the public. \r\nWe should send it out to the law schools, to the Civil \r\nLiberties Union, to the American Conservative Union, to other \r\npeople, get their comments on the text, get their suggested \r\namendments, not just those that our staff dreams up in 2 days, \r\nbut get--vet this in public, vet this through the various \r\nexperts around the country, and then go into a markup.\r\n We were told 4 years ago we didn't have time, that if we \r\nwaited a week, there would be blood on our hands. The Chairman \r\non the floor said it was true that we were doing this in great \r\nhaste, but the ideas in this bill have been around a long time. \r\nI said on the floor, yeah, the ideas have been around a long \r\ntime, good ideas, bad ideas, mediocre ideas, and which ideas \r\nhave gotten into the bill and to what extent wasn't clear since \r\nwe haven't had a chance to read it.\r\n Now, there is no commensurate rush. This bill is not \r\nexpiring tomorrow. Nothing expires until the end of the year. \r\nSo I would--I had suggested, and I still believe that since \r\nnobody saw this mark, this bill until Friday night, we should \r\ntake a week or two--a week and mark up the bill a week later so \r\nthat people in the country at large--the Civil Liberties Union, \r\nthe Conservative Union, the various libertarian groups, the law \r\nschools, everybody has a chance to look at this text, look at \r\nproposed amendments. There's no reason why we shouldn't make \r\nproposed amendments from both sides of the aisle available, and \r\nget people's comments. Why should we legislate in a vacuum as \r\nif all wisdom resides in this room?\r\n Now, I will concede a considerable amount of wisdom does \r\nreside in this room on both sides of the aisle, but not always, \r\nthough. So I would--it may be a little late at this point, but \r\nI would hope that we wouldn't finish work on this this week. We \r\nreally should put it off for at least a week because we should \r\ngive the country a chance to express itself--not the entire \r\ncountry but interested parties, law school professors, as I \r\nhave said before, people, law enforcement people, civil \r\nliberties people, an opportunity to look at this bill, not just \r\nat the concept, not just at the existing law, but at the bill, \r\nand at the suggested amendments and express themselves. We \r\nmight get some better ideas, and maybe that would reduce the \r\nnumber of amendments that we feel compelled to offer. Maybe it \r\nwould increase it. Who knows? But we might legislate in a more \r\ninformed manner.\r\n And since this bill does not expire until the end of the \r\nyear, there's not a rush. There is plenty of business on the \r\nfloor to keep the floor busy. And, in fact, because of the--I \r\nwill say, the efficient manner in which the leadership of this \r\nHouse has conducted business this year, we're way ahead of the \r\nSenate. We're going to have to wait for them anyway. We've done \r\nall the appropriations bills. They've done one or two of them. \r\nSo we've got plenty of time. I don't understand the nature of \r\nthe rush here and why we can't simply consider this a week \r\nbefore we--before we're asked to vote on these amendments and \r\ngive people outside this Committee room the chance to comment \r\nand maybe to give us a little more wisdom.\r\n I thank the Chairman and I yield back.\r\n Chairman Sensenbrenner. The time of the gentleman has \r\nexpired.\r\n Are there amendments? The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Mr. Chairman, I have two amendments.\r\n Chairman Sensenbrenner. Will the gentleman from California \r\nplease inform the clerk which amendment he wishes to offer?\r\n Mr. Lungren. It's the longer of the two.\r\n Chairman Sensenbrenner. The clerk will report.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Lungren \r\nof California. At the appropriate place insert the following: \r\nSEC----. Report. Section 2702 of title 18, United States Code, \r\nas amended by section 212 of the US PATRIOT Act, is amended by \r\ninserting at the end of the following: (d) Report.--On an \r\nannual basis, the Attorney General shall submit to the \r\nCommittees on the Judiciary of the House and the Senate a \r\nreport containing--(1) the number of accounts from which the \r\nDepartment of Justice has received voluntary disclosures under \r\nsubsection (b)(8) of this section; and (2) a summary of the \r\nbasis for disclosure in those instances where--(A) voluntary \r\ndisclosure under subsection (b)(8) of this section were made to \r\nthe Department of Justice; and (B) the investigation pertaining \r\nto those disclosures was closed without the following of \r\ncriminal charges.\r\n [The amendment of Mr. Lungren follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman from California is \r\nrecognized for 5 minutes.\r\n Mr. Lungren. Thank you very much, Mr. Chairman.\r\n Mr. Chairman, this deals with Section 212 of the PATRIOT \r\nAct. That is the section which permits the disclosure of the \r\ncontent of a communication while in electronic storage to \r\nGovernment entities by a service provider. Specifically, the \r\nprovider is allowed to divulge the contents of a communication \r\nwhere the provider reasonably believes that an emergency \r\ninvolving immediate danger of death or serious physical injury \r\nto any person requires the disclosure of the information \r\nwithout delay.\r\n Under such exceptional life-threatening circumstances, \r\npermitting the disclosure of such information to law \r\nenforcement is certainly understandable. I think our hearings \r\nshowed that. However, at the same time, since it also does \r\ninvolve the contents of a communication by a third party, I \r\nfelt that some accountability is necessary to ensure that this \r\nauthority is not being abused.\r\n My amendment provides that the Attorney General shall on an \r\nannual basis submit to this Committee and our counterpart in \r\nthe other body a report which must reveal the number of \r\naccounts from which the Department receives disclosures of \r\ninformation under Section 212. My amendment would also \r\nspecifically require the Department to provide a summary of the \r\nbasis for disclosure in those cases where the investigation was \r\nclosed without the filing of criminal charges. This information \r\nI believe should be highly beneficial to the Committee, \r\nfulfilling our oversight responsibility in the future, and I \r\nask for your support.\r\n I believe, Mr. Chairman, this is the best way for us to \r\nhave a ready manner of looking at this particular section. In \r\nthe hearings that we had, I found no basis for claiming that \r\nthere has been abuse of this section. I don't believe on its \r\nface it is an abusive section. But I do believe that it could \r\nbe subject to abuse in the future and, therefore, this allows \r\nus as Members of Congress to have an ability to track this on a \r\nregular basis.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Lungren. I yield back the balance of my time.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentleman----\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Delahunt.\r\n Mr. Delahunt. I support the gentleman's amendment, and I \r\nwould just ask some questions.\r\n I did not hear the gentleman refer to any other language \r\nother than just simply increased reporting to Congress. Is that \r\naccurate?\r\n Mr. Lungren. Yes. It requires--it requires a report. No \r\nsuch report is required at the present time for this specific \r\nsection.\r\n Mr. Delahunt. Can the gentleman inform me whether it \r\nprovides notice to persons whose communications have been \r\ndisclosed?\r\n Mr. Lungren. It does not provide notice. I considered that. \r\nI considered going to a court. I also considered giving notice. \r\nBut because of the possibility of a continuing ongoing \r\ninvestigation, I thought this was the best way for us to enter \r\ninto it. We're the other party that looks at it that would \r\nhopefully have regular oversight of the Justice Department in \r\nthis regard.\r\n Mr. Delahunt. Does it provide in any way, shape, or form \r\nfor after-the-fact review by a court?\r\n Mr. Lungren. No, it does not. I considered that. I thought \r\nupon consideration this made more sense.\r\n Mr. Delahunt. I would hope that the gentleman would \r\nconsider a conversation with myself and other members who \r\nsupport this amendment but feel that there should be additional \r\nprovisions within this--within this particular amendment that \r\nwould consider those particular aspects.\r\n Mr. Lungren. I will consider that, yes, sir.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n The question is on agreeing to the amendment offered by the \r\ngentleman from California, Mr. Lungren. Those in favor will say \r\naye? Opposed, no?\r\n The ayes appear to have it. The ayes have it. The amendment \r\nis agreed to.\r\n Are there further amendments? The gentleman from New York, \r\nMr. Nadler.\r\n Mr. Nadler. Thank you, Mr. Chairman. I call up amendment--\r\nNadler amendment 001.XML.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler. \r\nSection A. Strike section (b) of section 8 and insert the \r\nfollowing----\r\n Mr. Nadler. I think you have the wrong amendment--oh, no, \r\nI'm sorry. You're right.\r\n Chairman Sensenbrenner. The clerk will continue to report.\r\n The Clerk. (b) Applications for orders. Subsection (b) of \r\nsection 501 of the Foreign Intelligence Surveillance Act of \r\n1978 (50 U.S.C. 1861) is amended--(1) in paragraph (1), by \r\nstriking ``and'' at the end; (2) in paragraph (2), by striking \r\nthe period at the end and inserting ``; and''; and (3) by \r\nadding at the end the following----\r\n Mr. Chabot. Mr. Chairman, I'd ask unanimous consent that \r\nthe amendment be considered as read.\r\n Chairman Sensenbrenner. Without objection. The gentleman--\r\nwithout objection, so ordered.\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman from New York is \r\nrecognized for 5 minutes.\r\n Mr. Nadler. Thank you. Mr. Chairman, this amendment amends \r\nSection 215 in three ways: Section 215 authorizes the FBI to \r\nget a secret order for any document or anything, as long as the \r\nFBI says it is relevant to a terrorist investigation. The FBI \r\nwould go to a--would obtain an order from a secret FISA court \r\nto obtain a broad array of highly personal records, such as \r\nthose held by hotels, libraries, doctors, and schools, or any \r\nother, quote, tangible things. They can do this without \r\nprobable cause in domestic intelligence investigations to \r\nprotect against terrorism or spying.\r\n Under Section 215, this power can be used against literally \r\nanyone, even if the person is not suspected of any wrongdoing \r\nand is completely unconnected to terrorism, espionage, or other \r\ncriminal activity. Section 215 in effect allows the FBI to \r\nconduct fishing expeditions against any American citizen \r\ninnocent of anything.\r\n This amendment would amend Section 215 in three ways: It \r\nwould restore a standard of individualized suspicion, saying \r\nthat you could get an order if you have--if you can show \r\nspecific and articulable facts leading you to believe that this \r\nperson is an agent of a foreign power or a terrorist.\r\n Second, it allows the recipient of a Section 215 order to \r\nchallenge the order in court. This is a common-sense protection \r\nthat is sorely lacking in the current law.\r\n Now, the recipient, not the target--this isn't good enough, \r\nbut we can't do the target. Remember, the recipient could be \r\nthe Internet service provider or the library. And the Internet \r\nservice provider may be perfectly happy to provide the records \r\nof some subscriber. But at least this gives them the ability to \r\ngo to court when they get the order if they think it proper. It \r\ndoesn't give the target of the order the ability to go to \r\ncourt. He doesn't know about it. But the recipient, if they \r\nwish, can challenge it in court.\r\n And, thirdly, it gives the recipient the ability to \r\npetition the court to set aside the non-disclosure requirement. \r\nRemember, you're not allowed to disclose that you got this \r\norder. And this would enable the recipient not only to petition \r\nthe court to oppose the order, but to petition the court, if it \r\ngranted the order, to set aside the non-disclosure requirements \r\nif it is--unless it is shown that some adverse result will come \r\nfrom disclosure. In other words, they could go to court and say \r\nlet us tell the target or the public that you gave us this \r\norder and that we complied with it afterwards, unless someone \r\ncan--unless the FBI can make a showing that disclosure of this \r\nwould have some adverse effect.\r\n The Chairman's bill does allow for a limited version of \r\njudicial review of Section 215, but that review is very narrow. \r\nIt would require the recipient to file the claim for review in \r\na specialized court which would only meet in Washington. If you \r\nwere residing or your place of business was anywhere in the \r\ncountry other than Washington, this would be highly \r\ndisadvantageous and maybe impossible, depending upon the \r\nexpense. This amendment would say you could go to court and \r\npetition the court in any Federal--not just in Washington, D.C.\r\n I think that allowing a standard of individualized \r\nsuspicion that you say you can only get this information if you \r\nsay--if you can show to the court specific and articulable \r\nfacts why you believe that this fellow is a terrorist or an \r\nagent of a foreign power, allowing the recipient to challenge \r\nthe order in court and allowing the recipient to ask the court \r\nin its discretion to waive the non-disclosure requirement \r\nafterward are reasonable amendments which balance the liberty \r\ninterests that we all have with the security interests that we \r\nall have, too.\r\n I urge the adoption of the amendment and I yield back.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. Mr. Chairman, I rise in opposition to the \r\namendment.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Lungren. Mr. Chairman, when you look at this amendment, \r\nit is obvious that the standard proposed here is much more \r\nrigorous than the relevance standard under which Federal grand \r\njuries and ordinary criminal investigations can subpoena the \r\nsame records. This particular amendment would prevent the FISA \r\ncourt from issuing an order under Section 215 unless the \r\nGovernment provides specific and articulable facts giving \r\nreasons to believe that the person to whom the records pertain \r\nis a foreign power or an agent of a foreign power.\r\n As I say, this is a higher standard. The standard would, in \r\nmy judgment, hinder the Government from using a Section 215 \r\norder to develop evidence at the early stages of an \r\ninvestigation when such an order is most useful.\r\n Consider an example where investigators are tracking down a \r\nknown al Qaeda operative who's having dinner with three people \r\nwho split the check four ways and each uses a credit card. \r\nWhile law enforcement could demonstrate that this information \r\nis relevant to an ongoing investigation, they would not be able \r\nto demonstrate sufficient and articulable facts that those \r\nindividuals are agents of a foreign power.\r\n One of the things that we have tried to understand here is \r\nthat this is in the area of attempting to deal with activities \r\nbefore they expand into what would be known as a criminal act. \r\nThis is in the nature of trying to stop terrorists before they \r\nact, not in the nature of a regular criminal investigation \r\nwhich oftentimes is begun when you start to examine the crime \r\nscene, develop the forensic evidence, and then try and prove \r\nyour case. This is a far different situation, and it strikes, I \r\nbelieve, precisely at when a 215 order is most useful. Raising \r\nthis standard above relevance and requiring specific and \r\narticulable facts giving reason to believe that the person to \r\nwhom the records pertain is a foreign power or an agent of a \r\nforeign power would significantly, therefore, reduce the \r\nutility of Section 215.\r\n Also, with the--I guess it's the--it's either in the middle \r\nof the gentleman's amendment or towards the end, where he talks \r\nabout allowing this to be challenged in either a U.S. district \r\ncourt or in the FISA court, Section 215 orders are issued by \r\nthe FISA court, and any motion to set aside or amend the order \r\nI would argue should be directed to the issuing court. It is \r\nthe FISA court that is better equipped than district courts to \r\nhandle sensitive classified information at issue in terrorism \r\ncases.\r\n So let us remember why we have this section. This section \r\nis specifically to deal with the new reality that we have \r\nfacing us, and that is terrorism, with respect to transnational \r\norganizations as well as a lone wolf, but primarily \r\ntransnational organizations. And that's why we need the section \r\nas it is. I understand the gentleman's desire to try and raise \r\nthis standard to specific and articulable facts, giving reason, \r\nas the words he has. But I believe this much more rigorous \r\nstandard beyond the relevance standard would be destructive to \r\nthe purposes of Section 215.\r\n Mr. Berman. Would the gentleman yield?\r\n Mr. Lungren. I'd be happy to yield.\r\n Mr. Berman. I thank the gentleman for yielding. Is the \r\ngentleman's objection to the first part of the amendment an \r\nobjection to the requirement of specific and articulable facts \r\nor that it is limited to a suspect--a suspected agent of a \r\nforeign power, a suspected terrorist?\r\n Mr. Lungren. I would suggest that it's in both--both \r\nsections. You know, I think you need the relevance standard. \r\nThere was an argument about whether or not there should be a \r\nrelevance standard. I don't think there's any doubt there ought \r\nto be a relevance standard. It is in this bill as an \r\narticulated standard. One of the questions we had at the \r\nhearings at the very beginning was shouldn't there be some \r\nrelevance requirement. The response we heard from the Justice \r\nDepartment was that's the practice, that's what we require, \r\nthat's what the courts require.\r\n So what the Chairman of the Committee has done is put that \r\nrelevance standard in here.\r\n Mr. Berman. I appreciate----\r\n Mr. Lungren. I believe that's sufficient.\r\n Mr. Berman. I appreciate that, but let me just--I mean, the \r\ngentleman cited a hypothetical, which I have some sympathy for. \r\nI mean, you do want--to the extent you're using these, they're \r\nto go early and gather information.\r\n Mr. Lungren. Yes.\r\n Mr. Berman. But you talked about people who had \r\nassociated----\r\n Mr. Lungren. Right.\r\n Mr. Berman.--with someone who was suspected of being an \r\nagent of a foreign power.\r\n Mr. Lungren. Right.\r\n Mr. Berman. I'm just wondering if--is there something a \r\nlittle--something that is more--more specific than just a \r\nsimple relevance standard but is not so inflexible to keep you \r\nfrom, for instance, subpoenaing--getting--searching and getting \r\na hold of the records, whatever they are, of Mohammed Atta's \r\nroommate----\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n Mr. Berman. I'd ask unanimous consent for one additional \r\nminute.\r\n Chairman Sensenbrenner. Without objection.\r\n Mr. Berman. I just throw out the possibility that there's \r\nsomething between what you think is appropriate, the relevance \r\nstandard, based on the hypothetical you cited, and a number of \r\nother hypotheticals which could allow this FISA warrant or \r\nsubpoena to be--to be utilized and not be limited simply to \r\nsomeone for which there are specific and articulable facts is \r\nan agent of a foreign power.\r\n Mr. Lungren. If the gentleman would allow me to respond to \r\nthat, the standard proposed here is really the relevance \r\nstandard under which Federal grand juries in normal \r\ncircumstances operate. What the gentleman's amendment suggests \r\nis that we go above that to specific and articulable facts. \r\nBetween the two, it seemed to me the standard that is well \r\nrecognized has been utilized in the grand jury circumstance \r\nwould be the appropriate one, that the system understands, that \r\nthe prosecutors understand, that the courts understand, and \r\nthat, in fact, has been used. And I thought that was the \r\nsubject of the inquiry we had during the hearings, which was \r\nthe concern people had that we didn't have any standard, we \r\ndidn't have a relevance standard.\r\n And so in speaking with the gentlemen and women on the \r\nother side and with the Chairman, it seemed to me, as I talked \r\nwith the Chairman and the staff, that a relevance standard \r\narticulated specifically was sufficient for what we needed.\r\n Mr. Berman. Well, I will perhaps pursue this later on.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n Mr. Conyers. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Michigan, Mr. \r\nConyers.\r\n Mr. Conyers. Mr. Chairman, I----\r\n Chairman Sensenbrenner. Recognized for 5 minutes.\r\n Mr. Conyers. I want to find out if this is correct, and I'd \r\nlike to make sure that the gentleman from New York, Mr. Nadler, \r\nis following this. Section 215 broadens significantly who such \r\norders can be used against, and herein lies the problem. \r\nRecords prior to the PATRIOT Act could only be sought if the \r\nGovernment showed that the person whose records are sought is a \r\nforeign power or an agent of a foreign power. Now the \r\nGovernment need only show that the records are sought for a, \r\nquote, authorized investigation, unquote. And I ask the \r\ngentleman from New York: Is that a part of the problem that we \r\nhave with the 215 as it presently----\r\n Mr. Nadler. Well, yet, the--yes, 215 has been expanded so \r\nthat not only are we relaxing the standard, but we're relaxing \r\nthe--against whom it--against whom it can be issued and for \r\nwhat it can be issued. So it becomes a roving fishing \r\nexpedition generally, which is why narrowing the standard to \r\narticulable facts, which was the standard for all these other \r\nthings before, is what we're trying to do.\r\n Mr. Lungren. Would the gentleman yield on that point, Mr. \r\nConyers?\r\n Mr. Conyers. I'd be happy to yield.\r\n Mr. Lungren. See, here's the concern, and it goes to the--\r\nto the scenario that the gentleman from California, Mr. Berman, \r\nhad brought up.\r\n It's my understanding that if investigators were to learn \r\nthat someone lived with Mohammed Atta prior to the September 11 \r\nattacks but knew nothing else about the individual, \r\ninvestigators, reasonable investigators I think would want to \r\nfind out more about the individual. They'd want to find out \r\nabout his credit, his bank, his travel, his phone records. And \r\nunder the specific and articulable facts standard, the \r\ninvestigators would not be able to request this information \r\nusing Section 215.\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Lungren. Yes.\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Lungren. Well, it's not my time.\r\n Mr. Conyers. I yield.\r\n Chairman Sensenbrenner. The time belongs to the gentleman \r\nfrom Michigan.\r\n Mr. Conyers. I yield.\r\n Mr. Nadler. Thank you. Well, Mr. Lungren, I think that if \r\nsomeone was a roommate of Mohammed Atta, that would be a \r\nspecific and articulable fact connecting him to an agent of a \r\nforeign power.\r\n Why? Because Mohammed Atta----\r\n Mr. Lungren. If the gentleman would yield, it's my \r\nunderstanding, speaking with--speaking with representatives of \r\nthe Justice Department, in fact, that would not----\r\n Mr. Nadler. I'm sorry, say that----\r\n Mr. Lungren. But they would have to show a relevance \r\nstandard, but that falls short of specific and articulable \r\nfacts. The specific and articulable facts standard is too high.\r\n Now, I will have to tell you, I am relying on those who \r\nhave pursued cases such as this, and the information I have is \r\nthat that is too high a hurdle. And, again, I would just \r\nrepeat, when we went into this, the whole argument we had when \r\nwe had the hearing--I can recall it--was don't you believe, \r\nRepresentative of the Justice Department, we need to have a \r\nrelevance standard? Would you object to a relevance standard? \r\nAnd the response was, no, in fact, that's how we proceed. We--\r\n--\r\n Mr. Conyers. All right. I'd like to yield to the gentleman \r\nfrom California.\r\n Mr. Berman. I think your point of limiting it to the agent \r\nof a foreign power, that has meaning to me, and the problem--\r\nthe problem with that. I still think there is--you keep citing \r\nhypotheticals that involve an association with a suspected \r\nagent of a foreign power, and then say in order to do that, \r\nlet's just have a relevance standard.\r\n This isn't a typical search warrant. This is a FISA search \r\nwarrant. And I still think--I guess I still think there is a \r\nmiddle ground here that provides the Department with the \r\nflexibility to use FISA in these cases, but that is a little \r\ntighter than just a simple relevance standard, but not as \r\nlimiting as the person has to be a suspected agent of a foreign \r\npower. And I just--I just want to harp on that because I may \r\nwant to come back to that.\r\n I mean, I will vote for the gentleman's amendment because \r\nI'm unhappy simply with the relevance standard, but I think the \r\nright place to land on this is somewhere between the two.\r\n Mr. Conyers. And so do I. I hope this discussion has \r\nsupported the Nadler amendment, and I return the time.\r\n Chairman Sensenbrenner. The time of the gentleman----\r\n Mr. Nadler. Would the gentleman yield for a moment?\r\n Chairman Sensenbrenner. The time of the gentleman has \r\nexpired.\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Delahunt.\r\n Mr. Delahunt. Yeah, I think I'd like to pose a question to \r\nMr. Lungren in terms of the other two aspects of the Nadler \r\namendment relative to opportunity to challenge and disclosure--\r\nor elimination of the gag rule after a hearing, because I think \r\nwhat I find particularly interesting is that Mr. Nadler reaches \r\na conclusion that being a roommate of Mohammed Atta is an \r\narticulable fact. And your--and I have the same memory. The \r\nstatement from the representative of the Department of Justice \r\nthat would not constitute an articulable fact says to me that \r\nthere is a role here, a more--a significant role for judicial \r\nreview than currently exists. If either Mr. Nadler or Mr. \r\nLungren would want to comment.\r\n Mr. Lungren. I don't--I mean, if the gentleman is talking \r\nabout going beyond the FISA court? Is that the suggestion of \r\nthe gentleman?\r\n Mr. Delahunt. No.\r\n Mr. Lungren. Because that's the review that takes place \r\nnow.\r\n Mr. Berman. Would the gentleman yield?\r\n Mr. Delahunt. I'll yield to the gentleman from California.\r\n Mr. Berman. Here's the problem. You equate this with a \r\ngrand jury investigation, but those are not secret warrants. \r\nSomeone has a right to challenge them. It is the combination of \r\nthis secret warrant which the bill now will allow the person \r\nwho is required to deliver the records to learn about. I don't \r\nunderstand exactly what that means, the person who gets the \r\nwarrant can't disclose it. If the person who gets the warrant \r\nisn't the person who can produce the records, somebody's going \r\nto have to learn about it anyway. It's--but since the object of \r\nthis warrant, the target of this warrant is never going to know \r\nabout it, the notion of requiring something more than the \r\nstandard you'd have for a grand jury is real.\r\n At the same time, I think people who have--where you can \r\nprovide specific and articulable facts that someone is the \r\ntarget who was associated with the suspected agent of a foreign \r\npower, I think the Justice Department should have FISA warrants \r\navailable to get those records in this fashion, and that's--I \r\nthink that's the whole point, is you can't just simply put this \r\noff as, oh, this is like a grand jury investigation, because a \r\ngrand jury investigation, those warrants aren't secret and the \r\ntarget of it can challenge the warrant, and there's a very \r\nestablished procedure to raise with the judiciary in a public \r\nway, the question of whether they're--the warrant was \r\noverbroad.\r\n Here we're not going to have that for very understandable \r\nreasons, so let's give the FISA court some--a little bit more \r\nspecificity than simply a broad claim of relevance to make its \r\njudgment about whether or not to issue the warrant.\r\n Mr. Delahunt. Reclaiming my time, I think the point that \r\nMr. Berman is taking is the availability of a motion to quash \r\nexists in terms of a criminal investigation, whereas it does \r\nnot exist in this particular case.\r\n Mr. Lungren. Would the gentleman yield on that?\r\n Mr. Delahunt. I'll yield.\r\n Mr. Lungren. I would cite page 7, starting at line 16 of \r\nthe bill.\r\n Mr. Delahunt. Okay.\r\n Mr. Lungren. Which says that a person receiving an order to \r\nproduce any tangible thing under this section may challenge the \r\nlegality of that order by filing a petition in the special \r\npanel established by the bill. That's a special panel under----\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Lungren.--the FISA court, and then one would have, if \r\nI'm not mistaken, the court of review shall immediately provide \r\nfor the record a written statement, and the petition of the \r\nindividual involved can go directly to the Supreme Court under \r\nseal. That's a new provision.\r\n Mr. Delahunt. I understand that. Reclaiming my time, \r\nhowever, what we're talking about is the--it's the ISP, not the \r\ntarget of the investigation. With that, I yield to the \r\ngentleman from New York.\r\n Mr. Nadler. Thank you.\r\n Mr. Lungren, the fact is that as Mr. Berman said, here the \r\ntarget of the investigation never hears about this. In a \r\ngrand--you can't simply analogize it to a grand jury situation. \r\nIn the grand jury situation, the target is served--knows about \r\nit. He can make the motion to quash. He can make the motion to \r\nlimit the scope of the production--of the order. In this \r\nsituation, he doesn't know about it. The ISP, who is the--who \r\nhas the records, or perhaps the library or whoever else, or the \r\ntravel agency or the credit card company, they get the \r\nsubpoena, the target doesn't. The target never gets the \r\nopportunity to quash, number one.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n Mr. Nadler. I ask unanimous consent for an additional 2 \r\nminutes on this.\r\n Chairman Sensenbrenner. Without objection, the gentleman \r\nfrom Massachusetts will be given an additional 2 minutes.\r\n Mr. Delahunt. I yield. I continue to yield to the gentleman \r\nfrom New York.\r\n Mr. Nadler. Thank you. So it is necessary to limit it \r\nsomewhat.\r\n Now, I believe that in the situation that you've stated \r\nbefore--and maybe--that if you can--if a known terrorist, a \r\nknown agent of al Qaeda is having lunch and splitting the \r\ncredit cards with two other guys, that's enough--that's an \r\narticulable fact to connect those two guys with him and, \r\ntherefore, to justify under this standard. But--that's an \r\narticulable fact connecting him to a foreign power, because if \r\na foreign power--al Qaeda is considered a foreign power.\r\n But going further than that--but, again, I would be open \r\nto--to some intermediate standard in this, say a simple \r\nstandard of relevance, where you can--where you can get \r\nvirtually anything and the target knows nothing about it and \r\ncan't move to quash or to limit is not sufficient. And I would \r\nalso say in response to what Mr. Lungren said before, the \r\nsecond part of the amendment, it simply allows you to go in and \r\nallows the recipient of the order, the ISP or the library or \r\nthe credit card company, to oppose the order in a Federal \r\ncourt, not just a FISA court. Yes, the FISA court is a good \r\ncourt to do that, but the Federal court can also do things in \r\nsecret. And a Federal court is just as able as a FISA court to \r\nweigh the interests here, but a Federal court has the advantage \r\nof not being only in Washington, D.C. If you're a local library \r\nor a local car rental company in California, it's very \r\ndifficult for you to go to Washington to move in court to \r\noppose the order.\r\n Mr. Delahunt. Reclaiming my time, I'd pose to Mr. Lungren \r\nthe question that was just--the observation and put it in the \r\nform of a question made by the gentleman from New York, whether \r\nhe would have an objection to that aspect of this particular \r\namendment, the right to challenge in either the FISA or--\r\nobviously in an in-camera proceeding in a Federal district \r\ncourt.\r\n Mr. Lungren. Well, before I respond--or in trying to \r\nrespond to that, I would just say I'm confused by some of the \r\ncomments that were made----\r\n Chairman Sensenbrenner. Without objection, the gentleman \r\nwill be given an additional 2 minutes.\r\n Mr. Lungren. Suggesting that a grand jury subpoena is in \r\nall or most circumstances disclosed to an individual whose \r\nrecords may be a subject of the subpoena. There are non-\r\ndisclosure orders given often with respect to those things, and \r\npeople are not aware of what goes on in the grand jury. So I'm \r\ntrying to figure out----\r\n Mr. Delahunt. Right, but my response, reclaiming my time, \r\nwould be that that--under those particular circumstances, there \r\nis judicial intervention and a non-disclosure order is issued \r\nby a court in a traditional Title III criminal investigation. \r\nThat is not the case here. What we have is this automatic gag \r\norder that is evoked in the legislation.\r\n With that, I continue to yield to the gentleman from New \r\nYork.\r\n Mr. Nadler. I think I've said what I wanted to say. This \r\nhas three sections. Again, if the specific and articulable \r\nfacts--and, again, this may show why we should have had a \r\nhearing specifically on the--on the draft. If that's too high, \r\nmaybe we should find some other standard intermediate, because \r\na simple standard of relevance under these subject--under these \r\ncircumstances is too broad a fishing expedition. And, again, we \r\nshould allow the recipient of the order to go into any Federal \r\ncourt in camera if the court--well, it would have to be in \r\ncamera. And don't forget the third part of the amendment, which \r\nsays that you can challenge the non-disclosure part of it, too.\r\n In the interest of not having 50 amendments, I put all \r\nthree of them together. I would be willing to separate if \r\nsomeone----\r\n Chairman Sensenbrenner. The time of the gentleman from \r\nMassachusetts has once again expired. The question is on \r\nagreeing to the amendment offered by the gentleman from New \r\nYork, Mr. Nadler. Those in favor will say aye. Opposed, no?\r\n The noes appear to have it.\r\n Mr. Nadler. Mr. Chairman, I ask for the ayes and nays.\r\n Chairman Sensenbrenner. A rollcall is requested and will be \r\nordered. Those in favor of the Nadler amendment will as your \r\nnames are called answer aye, those opposed, no, and the clerk \r\nwill call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n [No response.]\r\n The Clerk. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. I vote aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. No.\r\n The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members in the chamber who wish to \r\ncast or change their votes? The gentleman from Virginia, Mr. \r\nBoucher.\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye.\r\n Chairman Sensenbrenner. Further members in the chamber who \r\nwish to cast or change their votes? If not, the clerk will \r\nreport.\r\n The Clerk. Mr. Chairman, there are 12 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n Are there further amendments? For what purpose does the \r\ngentleman from Arizona seek recognition?\r\n Mr. Flake. I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Flake. Thank you, Mr. Chairman.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Flake. In \r\nSection 501(d) of the Foreign Intelligence Surveillance Act of \r\n1978, as proposed to be amended by Section 8(c), strike ``in \r\nresponse to'' each place it appears and insert ``with respect \r\nto.''\r\n [The amendment of Mr. Flake follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman from Arizona is \r\nrecognized for 5 minutes.\r\n Mr. Flake. Thank you, Mr. Chairman. My amendment simply \r\nstrikes the words ``in response to'' under 215 in the bill and \r\nadds the words ``with respect to.'' This amendment would \r\nfurther clarify that a person can disclose to an attorney the \r\nreceipt of a 215 order to not only respond but to challenge the \r\norder. While I don't believe that it's the purpose of this \r\nlegislation to deny consultation to challenge, I believe that \r\nthe concerns raised by Section 215 merit more specificity in \r\nthe bill. Thus, this amendment makes it clear that a person who \r\nhas received a 215 order may disclose that information to an \r\nattorney not just to respond to the order but to challenge the \r\norder.\r\n This clarification provides additional protections for \r\nlibrarians, bookstore and small business owners to be able to \r\nhave a clear, viable, legal recourse when faced with a 215 \r\nrequest. It seems clear that when we're talking about possibly \r\nallowing the Government to access important and sensitive \r\nrecords, we need to make sure that people's rights are \r\nexplicitly protected in the law. I urge my colleagues to accept \r\nthe amendment.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Flake. I yield back.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentleman from Arizona, Mr. Flake. \r\nThose in favor will say aye. Opposed, no?\r\n The ayes appear to have it. The ayes have it, and the \r\namendment is agreed to.\r\n Are there further amendments? Are there further amendments? \r\nThe gentleman from Virginia, Mr. Scott.\r\n Mr. Scott. I have an amendment at the desk, number 4.\r\n Chairman Sensenbrenner. The clerk will report Scott \r\namendment number 4.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of \r\nVirginia. Add at the end the following: Section. Limitation on \r\nauthority to delay notice of search warrants. Section 3103(a) \r\nof Title 18, United States Code, is amended (1) in subsection \r\n(b), (A), in paragraph (1), by striking ``may have an adverse \r\nresult as defined in Section 2705'' and inserting ``will \r\nendanger the life or physical safety of an individual, result \r\nin flight from prosecution or the intimidation of a potential \r\nwitness, result in the destruction or tampering with the \r\nevidence sought under the warrant, or seriously jeopardize or \r\ndelay an investigation of international or domestic \r\nterrorism,''; and (b)----\r\n Mr. Scott. Mr. Chairman, I ask unanimous consent that the \r\nreading be waived.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n Chairman Sensenbrenner. And the gentleman is recognized for \r\n5 minutes.\r\n Mr. Scott. Mr. Chairman, this amendment eliminates a wide \r\nopen catch-all for sneak-and-peek which says you can get a \r\nsneak-and-peek warrant if the notification would seriously \r\njeopardize the investigation, which is any investigation, or \r\nunduly delay a trial, any trial. And it also limits the \r\ninvestigation and delay to terrorism cases.\r\n What we're constantly told is the justification for the \r\nsneak-and-peek extraordinary powers is that the Government has \r\nto invade our privacy and spread information all over town to \r\nprotect us from terrorism. Yet we find that the vast majority \r\nof the delayed notice cases do not involve terrorism cases at \r\nall, but just ordinary street crime.\r\n The amendment also places some reasonable time limit over \r\noversights and how long a notice can be delayed and how that \r\ndelay can be extended. With such invasive powers, restrictions, \r\nand oversight--in restrictions, oversight is crucial. There's \r\nno real remedy or serious disincentive for a mistake or other \r\nunwarranted access to someone's privacy in these sneak-and-peek \r\nwarrants. So it's crucial that you have some kind of review and \r\noversight mechanisms.\r\n One of the things it does, for example, is requires the \r\nnotice after 7 days, or you can extend that in 30-day \r\nincrements for as long as you want. But you have to show cause \r\nfor a continued reason to delay. We've been told that some of \r\nthese delayed notification indefinitely without end, and \r\nthere's no way ever to get notice. I think you need to continue \r\nafter so many years. I think at some point notice should be \r\ngiven that your house was searched. That's the normal process, \r\nand I hope you'd adopt the amendment.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Scott. I yield.\r\n Ms. Lofgren. I commend the gentleman for his amendment, and \r\nI'd like to point out that this is a good reason why we have a \r\nsunset clause. What's in the bill was written in haste. What \r\nthe gentleman has written by amendment is tightly drawn and \r\nvery thoughtful and a good example of why the sunset really is \r\nimportant, and I thank the gentleman for yielding.\r\n Mr. Scott. Thank you. I yield back, Mr. Chairman.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr. \r\nFlake.\r\n Mr. Flake. Thank you, Mr. Chairman.\r\n I appreciate the concerns that Mr. Scott has, particularly \r\nwith regard to a reasonable period, and I am, in fact, drafting \r\nan amendment that I hope to offer on the floor that will deal \r\nwith that aspect. And so I do have the same concerns, but I \r\nthink 7 calendar days is probably too short. And so I would \r\nlove to work with the gentleman from Virginia on the floor \r\namendment, if I can.\r\n Mr. Scott. Would the gentleman----\r\n Mr. Flake. I yield back----\r\n Mr. Scott. Would the gentleman yield?\r\n Mr. Flake. If I haven't yielded back, I would yield.\r\n Mr. Scott. What time period did you have in your amendment \r\nthat you'll be considering?\r\n Mr. Flake. I'm still working with others on that.\r\n Mr. Scott. And if you'll continue to yield, I'd point out \r\nthat the 7-day period is a presumption that you can delay it 7 \r\ndays, but you can get it extended in 30-day increments forever, \r\nso long as you can show good cause.\r\n Mr. Flake. I will have a similar provision in my bill, a \r\nreasonable----\r\n Mr. Scott. Well, with that, Mr. Chairman, I think I'd like \r\nto work with the gentleman from Arizona, and I'll withdraw the \r\namendment at this point.\r\n Chairman Sensenbrenner. The amendment is withdrawn.\r\n Are there further amendments? The gentlewoman from \r\nCalifornia, Ms. Waters, for what purpose do you seek \r\nrecognition?\r\n Ms. Waters. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Ms. Waters of \r\nCalifornia. Add at the end the following: Section--National \r\nSecurity Letters. A national security letter shall not be \r\nissued to a health insurance company under any of the \r\nprovisions of law amended by Section 505 of the Uniting--\r\nUniting and Strengthening America by providing appropriate \r\ntools required to intercept and obstruct terrorism, US PATRIOT \r\nAct of 2001.\r\n [The amendment of Ms. Waters follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentlewoman from California is \r\nrecognized for 5 minutes.\r\n Ms. Waters. Thank you very much, Mr. Chairman.\r\n My amendment would prohibit Section 205, National \r\nSecurity--National Security Letters, from being applied to help \r\ninsurance companies. Mr. Chairman, as it stands, the Government \r\ncan issue secret national security letters to help insurance \r\ncompanies without any judicial review or approval. Therefore, \r\nhealth insurance providers can be compelled to produce highly \r\nprivate and personal medical information without any court \r\nreview. And the target of the national security letter would \r\nnever be notified that such confidential information had been \r\nproduced.\r\n Mr. Chairman, we must be concerned and even ask how do \r\nmedical records pertain to terrorism investigations. What kind \r\nof information will this lend to the investigations? There are \r\nno clear answers to these questions. Records that are so highly \r\npersonal and that on their face do not seem to bear any \r\nsignificance to terrorism investigations should be subject to \r\njudicial review so that the Government will be required to \r\nprove to a judge why such confidential information would be \r\nimportant to such an investigation.\r\n Mr. Chairman, in a criminal investigation, the Government \r\ncan only obtain such personal records through the issuance of a \r\nsearch warrant. However, the Government must first prove that \r\nthere is probable cause that a crime has been or will be \r\ncommitted.\r\n Mr. Chairman, there is no reason why the Government should \r\nbe allowed to demand the production of such personal private \r\nrecords without any judicial review or notice to the target. \r\nAnd though my--through my very special amendment, checks and \r\nbalances can be injected into the production of our \r\nconfidential medical records.\r\n I just think it needs no further explanation. I think that \r\nthe average individual would just be opposed to allowing their \r\nmedical records to be accessed without judicial review and \r\nwithout any notice at all at any time to the target of the so-\r\ncalled investigation. And I would simply ask for an aye vote \r\nand reserve the balance of my time.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. I rise in opposition to the amendment.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Lungren. The question was posed, Why would health \r\nrecords ever be relevant in a terrorism investigation and why \r\nwould you need a national security letter for investigation? \r\nWell, let's see. Anthrax, dealing with other biological or \r\nchemical agents. Someone might be treated for that to gain \r\nimmunities to that such that when they are dealing with those \r\nparticular contaminants they may not be deleteriously affected.\r\n So I think one of the things we have to keep in mind is \r\nwhat is the context of this law. This law is in response to the \r\nterrorist attacks that we suffered on 9\/11. The 9\/11 Commission \r\nspecifically said the greatest complaint against the \r\nlegislative and executive branch of the Federal Government was \r\nthat we failed in a lack of creativity, a lack of imagination, \r\nin other words, thinking within the box instead of outside the \r\nbox. So I am not as--I am not put at ease by suggesting that I \r\nknow all of the potential attempts that terrorists might make \r\nto attack us.\r\n Recently, I, along with other members of the Homeland \r\nSecurity Committee, had an opportunity to go down and do a \r\nday's review at the Center for Disease Control, CDC, which in \r\nmany ways is responsible for our response to potential attacks \r\nsuch as those I've mentioned. If that is as great a concern as \r\nwas expressed to us on our review down there, it seems to me \r\nfor us to create a total exemption here for health records \r\nbecause we can't anticipate where they might be relevant is a \r\nstep that I don't think we want to take.\r\n Mr. Gohmert. Would the gentleman yield?\r\n Mr. Lungren. I'd be happy to yield to the gentleman from \r\nTexas.\r\n Mr. Gohmert. Yes, if I might add, as a judge, we constantly \r\nsaw people and these criminals, terrorists that want to hurt \r\nother people deal with dangerous elements. They are often \r\ninjured in trying to prepare things to injure others. And these \r\nhealth records could be in the right situations--and I saw \r\nthose as a judge--helpful in determining have they been working \r\nwith these dangerous elements and components that would be used \r\nlater. They could be very helpful.\r\n I yield back.\r\n Mr. Schiff. Will the gentleman yield?\r\n Mr. Lungren. Yes.\r\n Mr. Schiff. I appreciate the gentleman yielding, and, you \r\nknow, I think that you make a number of good points. But I want \r\nto ask you one question, and that is, the use of the national \r\nsecurity letter which has, I think, the least number of \r\nsafeguards applied to it, because there is no court review, \r\nthere is no going before a grand jury. And I guess my question \r\nis: Under what circumstances is it necessary to use the \r\nextraordinary remedy of a national security letter as opposed \r\nto going to the FISA court for this information or going to the \r\ngrand jury for this information where there are greater checks? \r\nWhen would it be necessary to use the national security letter \r\nwhere there is really no oversight?\r\n Mr. Lungren. I am sorry. I was----\r\n Mr. Schiff. Let me try again.\r\n Mr. Lungren. I apologize. I'm not showing disrespect to the \r\ngentleman.\r\n Mr. Schiff. And my question is not rhetorical. I generally \r\nwould like an answer. And that is, I think that you make a good \r\npoint that in an anthrax investigation or some other biological \r\nkind of investigation, that you may need these records. My \r\nquestion though is there are several methods of getting them. \r\nIn a criminal investigation you can go through the grand jury \r\nwhere there's a check. In the FISA Court you need court \r\npermission to get it where there's a check. With the national \r\nsecurity letter, there is the least checks and balances.\r\n And my question is, why do we need to use the national \r\nsecurity letter in this context? What kind of circumstances \r\nwould require us to use the extraordinary remedy of a national \r\nsecurity letter as opposed to the more traditional approach of \r\ngoing to the grand jury or going to a FISA court?\r\n Mr. Lungren. Well, it's my understanding that these are \r\npreliminary investigations before you have probable cause. \r\nThese are investigations that have not arisen to the level of a \r\ncriminal investigation, so you're not going to be doing a grand \r\njury investigation. They are by their very nature go to the \r\nquestion of national security, and I guess the question the \r\ngentleman is asking is why do we have these at all?\r\n I am not the expert in that. I would just say I would not \r\nsupport us creating an exemption for them in the--for health \r\nrecords for the very reasons I gave.\r\n Mr. Schiff. Will the gentleman yield again?\r\n Chairman Sensenbrenner. The gentleman's time has expired. \r\nWithout objection the gentleman will be given an additional \r\nminute.\r\n Mr. Schiff. I appreciate what you're saying, but if you're \r\nsaying that there isn't probable cause so you can't get a grand \r\njury subpoena, and there's no foreign agent or foreign power \r\ninvolved, so you can't go to the FISA court, then what do you \r\nhave as the basis for getting this very personal private \r\nrecord, something not involving foreign power and something \r\nless than probable cause? To get something that personal like a \r\nmedical record, I think there should be a stronger basis than \r\nthat. And there may very well be a good argument, but I just \r\nhaven't heard it yet today, and I'm--if somebody else on the \r\nother side of the aisle can answer that question, I would be \r\ndelighted to know.\r\n Mr. Issa. If the gentleman would yield?\r\n Mr. Lungren. Yes, I'd be happy to yield.\r\n Mr. Issa. I might remind the gentleman from California that \r\nin 2001 when we had an anthrax actual event here, we did not \r\nknow whether it was foreign power, and if--and I don't know if \r\nit was done--if there was an evaluation of people's health \r\nrecords to find out if somebody showed the symptoms where they \r\nmight have either been a victim or in fact a perpetrator, that \r\nthat would have been broad, it would have had no probable cause \r\nagainst them, and to the extent that people didn't have an \r\nenzyme or some other indication, nothing further would have \r\nhappened. It would have been the classic example where national \r\nsecurity was at stake, thousands of people might have been \r\nchecked in order to be eliminated or to be included, and no \r\nfurther action was taken.\r\n To me, the anthrax, not scare, but events that we lived \r\nthrough would be a good example.\r\n Mr. Schiff. Would the gentleman yield?\r\n Chairman Sensenbrenner. The gentleman's time is again \r\nexpired.\r\n Mr. Schiff. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman from California is \r\nrecognized for 5 minutes.\r\n Mr. Schiff. Two points on that. One is--and I'd offer my \r\ncolleague from California--do you know whether a national \r\nsecurity letter was ever issued in the anthrax investigation? \r\nMy guess is they probably used the traditional remedies of \r\ngrand jury subpoenas. And No. 2, there's not a grand jury in \r\nthe country that would turn down a subpoena in an anthrax \r\ninvestigation of that nature.\r\n So, again, there may be very good reasons why we need a \r\nnational security letter to get health records, but I'd like to \r\nknow what they are before I have to vote on this, and I still \r\nam not quite hearing it. I yield back.\r\n Mr. Delahunt. Would my friend yield?\r\n Mr. Schiff. I'd be happy to yield to my colleague from \r\nMassachusetts.\r\n Mr. Delahunt. I understand the concerns about just simply a \r\nblanket exemption that would deny the Government the \r\nopportunity to examine health records, but I think the point \r\nthat the gentleman is making by inference is that there are no \r\nstandards whatsoever as a result of the PATRIOT Act. It's my \r\nunderstanding that prior to the passage of the PATRIOT Act, \r\nspecific and articulable facts given reason to believe the \r\nrecords pertain to an agent of a foreign power was the \r\nstandard. That, I dare say, given the experience that we've \r\nhad, given the hearings that we've conducted, ought to be \r\nreinserted as part of the issuance of national security \r\nletters. Give us a standard. That's what we're talking about \r\nhere.\r\n And if any of my colleagues on the other side of the aisle \r\nthink that that is too high a standard, I would like to hear \r\nthem offer a rationale, because in the real world that is \r\nsimply not a very high standard, but it does invoke a \r\noversight, if you will, as opposed simply to allow the FBI, \r\nbased on an assertion, to issue a NSL that no one is aware of, \r\nand, you know, maybe it requires a little more work. But this \r\nisn't about conveniencing Government. It certainly, I don't \r\nthink, would warrant any delay. A delay would be an impediment. \r\nThis is about privacy rights, about individual liberties. This \r\nis not balancing with national security concerns, but it's not \r\na matter of convenience for the Department of Justice. And I \r\nthink that's what our focus has to remain during the course of \r\nour deliberations on the reauthorization of the PATRIOT Act.\r\n Ms. Lofgren. Mr. Chairman?\r\n Mr. Delahunt. I'll yield to the gentlelady from California.\r\n Ms. Lofgren. I would just note that we have some options \r\nhere. One is really what the gentleman has said, which is to \r\nset out standards that we agree are reasonable for the use of \r\nthese powers by the Government or to provide--three are certain \r\nelements entitled to enhance privacy, and to fall back on \r\nordinary means to obtain such records. I don't know if anyone \r\nis going to offer later an amendment relating to library \r\nrecords or bookstore records, but the ability of people to read \r\nwhat they want, to have their health care records respected is \r\nsomething that means a lot.\r\n Now, I'm going to support this amendment because if this \r\namendment passes, there are still plenty of ways for \r\nprosecutors to obtain these records if they can make a case \r\nthat they're necessary. So I would yield to the gentlelady from \r\nCalifornia further on that point.\r\n Ms. Waters. I appreciate that. And I think the discussion \r\nthat we've had helps to illuminate why there's such concern \r\nabout what we do in renewing the PATRIOT Act. This Committee, \r\non PATRIOT Act I, acted in a most responsible way, and we came \r\ntogether to produce the PATRIOT Act, and we took out a lot of \r\nthe problems that were originally identified with the PATRIOT \r\nAct because Americans simply said, we want you public \r\npolicymakers to protect us from terrorism, but we do not want \r\nyou to destroy all of our civil liberties. And the's really the \r\nnational discussion about the PATRIOT Act. Can we produce good \r\npublic policy that will help protect us from terrorism, at the \r\nsame time not throw all of our civil liberties out of the \r\nwindow. And this is a prime example of that.\r\n Americans do not want national security letters that would \r\nallow the Government to simply have access too all of our \r\nmedical and health records without showing probable cause. We \r\nhave in law the means by which this can be done.\r\n Chairman Sensenbrenner. The gentleman's time has expired, \r\nand without objection will be given an additional minute.\r\n Ms. Waters. Thank you very much, Mr. Chairman.\r\n This can be done with judicial review. And I'm simply \r\nsaying that we use what we have in existing law to obtain those \r\nrecords if we can go and show probable cause--and I think any \r\njudge would support that. I don't know why we have to throw \r\nthat out the window and have open access to these private and \r\npersonal records without that kind of review.\r\n So I would simply ask my colleagues to support this \r\namendment. I think it is reasonable. I think it is the right \r\nthing to do, and I think this is what Americans expect of us.\r\n Chairman Sensenbrenner. The time of the gentleman has \r\nexpired.\r\n The question is on agreeing to the amendment offered by the \r\ngentlewoman from California, Ms. Waters. Those in favor will \r\nsay aye.\r\n Opposed, no.\r\n The ayes appear to have it.\r\n Mr. Goodlatte. rollcall.\r\n Chairman Sensenbrenner. rollcall is requested by the \r\ngentleman from North Carolina. Those in favor of the Waters \r\namendment will, as your names are called, answer aye; those \r\nopposed, no, and the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. No.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? Gentleman from Illinois, Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n Are three further amendments?\r\n Mr. Issa. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nIssa.\r\n Mr. Issa. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199 offered by Mr. Issa. At \r\nthe appropriate place in the bill insert the following new \r\nsection:\r\n Section - Roving Surveillance Authority Under the Foreign \r\nIntelligence Surveillance Act of 1978.\r\n (a) Inclusion of specific facts in application. Section \r\n105(c)(2)(b) of the Foreign Intelligence Surveillance Act of \r\n1978 (50 USC 105(c)(2)(B), as amended by Section 206 of the USA \r\nPATRIOT Act is amended by striking----\r\n Chairman Sensenbrenner. Without objection the amendment is \r\nconsidered as read, and the gentleman from California will be \r\nrecognized for 5 minutes.\r\n [The amendment of Mr. Issa follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Issa. Thank you, Mr. Chairman. On both sides of the \r\naisle I think that we all remember, those of us who were here, \r\nhow important it was to modernize the definition of a wiretap, \r\nthat in fact this section was created because the use of \r\ncellular phones, and particularly disposing of cellular phones \r\non as often as a daily basis, had made the conventional wiretap \r\nunusable. In this procedure we felt in October 2001, that we \r\nwere entering a new phase, one that would need oversight.\r\n Today as part of our oversight during the sunset \r\nreconsideration, I offer this amendment which deals with the \r\none most vexing issue, which is, are we giving people the \r\nability to go on jumping from phone to phone beyond the \r\noriginal intent of a roving wiretap? To that extent this \r\namendment will require that the intelligence investigators \r\nnotify the FISA Court within 10 days each time it initiates \r\nsurveillance on a new communication facility pursuant to the \r\nFISA--I have a terrible time with that, FISA, yeah, thank you, \r\nFISA as in Issa--roving wiretap.\r\n Mr. Chairman, I can see that we all understand that these \r\nkinds of wiretaps can go on for months or years, and commonly \r\ndo, and they may stay with one cellular phone for months on \r\nend. However, if somebody is disposing of their wiretap every \r\nsingle day, every 10 days, under my amendment, we would be back \r\nin informing the court that there was an expansion. This would \r\nprevent what many have said would be the bugging of all of Los \r\nAngeles. Just the opposite, this will give the court constant \r\noversight on what might be a very often basis, but I think \r\nappropriately so to meet people's concerns, and I would ask on \r\nboth sides of the aisle, all of us who worked on the original \r\nlegislation, to vote for this perfecting amendment.\r\n And with that, I yield.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentleman from California, Mr. Issa. \r\nThose in favor will say aye.\r\n Opposed, no.\r\n The ayes appear to have it. The ayes have it.\r\n Mr. Issa. I would ask a recorded vote.\r\n Chairman Sensenbrenner. Recorded vote is requested. Those \r\nin favor of the Issa amendment will, as your names are called, \r\nanswer aye, those opposed, no, and the clerk will call the \r\nroll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. Aye.\r\n The Clerk. Mr. Coble, aye. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. Aye.\r\n The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye. Mr. Chabot?\r\n Mr. Chabot. Aye.\r\n The Clerk. Mr. Chabot, aye. Mr. Lungren?\r\n Mr. Lungren. Aye.\r\n The Clerk. Mr. Lungren, aye. Mr. Jenkins?\r\n Mr. Jenkins. Aye.\r\n The Clerk. Mr. Jenkins, aye. Mr. Cannon?\r\n Mr. Cannon. Aye.\r\n The Clerk. Mr. Cannon, aye. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. Aye.\r\n The Clerk. Mr. Inglis, aye. Mr. Hostettler?\r\n Mr. Hostettler. Aye.\r\n The Clerk. Mr. Hostettler, aye. Mr. Green?\r\n Mr. Green. Aye.\r\n The Clerk. Mr. Green, aye. Mr. Keller?\r\n Mr. Keller. Aye.\r\n The Clerk. Mr. Keller, aye. Mr. Issa?\r\n Mr. Issa. Aye.\r\n The Clerk. Mr. Issa, aye. Mr. Flake?\r\n Mr. Flake. Aye.\r\n The Clerk. Mr. Flake, aye. Mr. Pence?\r\n Mr. Pence. Aye.\r\n The Clerk. Mr. Pence, aye. Mr. Forbes?\r\n Mr. Forbes. Aye.\r\n The Clerk. Mr. Forbes, aye. Mr. King?\r\n Mr. King. Aye.\r\n The Clerk. Mr. King, aye. Mr. Feeney?\r\n Mr. Feeney. Aye.\r\n The Clerk. Mr. Feeney, aye. Mr. Franks?\r\n Mr. Franks. Aye.\r\n The Clerk. Mr. Franks, aye. Mr. Gohmert?\r\n Mr. Gohmert. Aye.\r\n The Clerk. Mr. Gohmert, aye. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n Mr. Berman. Berman is aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n [No response.]\r\n The Clerk. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. Aye.\r\n The Clerk. Mr. Chairman, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n Gentleman from Massachusetts, Mr. Delahunt.\r\n Mr. Delahunt. How am I recorded?\r\n The Clerk. Mr. Chairman, Mr. Delahunt is not recorded.\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye.\r\n Chairman Sensenbrenner. The clerk will try again to report.\r\n The Clerk. Mr. Chairman, there are 34 ayes and no noes.\r\n Chairman Sensenbrenner. And the amendment is agreed to.\r\n Are there further amendments? The gentleman from \r\nCalifornia, Mr. Lungren?\r\n Mr. Lungren. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199 offered by Mr. Lungren of \r\nCalifornia.\r\n Add at the end the following:\r\n Sec. 9 Sunset for Certain Provisions.\r\n Sections 206 and 215 of the USA PATRIOT Act and the \r\namendments made by those sections, shall cease to have effect \r\non December 31, 2015.\r\n Chairman Sensenbrenner. The gentleman from California is \r\nrecognized for 5 minutes.\r\n [The amendment of Mr. Lungren follows:]\r\n \r\n \r\n Mr. Lungren. Mr. Chairman, this is a fairly simple \r\namendment. It would put a 10-year sunset on Sections 205 and \r\n215 of the PATRIOT Act. I believe that the sunset provisions in \r\nthe current law have given us an opportunity, a prod, if you \r\nwill, to look at certain sections of the PATRIOT Act in a way \r\nthat is probably more intense and deeper than we would \r\notherwise have done. Having attended, I believe, all of the \r\nSubcommittee hearings on those provisions, as well as the full \r\nCommittee hearings, I'm satisfied that there is no evidence of \r\nabuse in the substance of the law, nor abuse of civil liberties \r\nin the application of the law by the Justice Department during \r\nthe time that these laws have been in effect.\r\n Nonetheless, it seems to me that the two most controversial \r\nprovisions which were sunsetted in the original law are \r\nSections 206, the roving wiretap, and Section 215 which deals \r\nwith business records. For that reason, I thought that it would \r\nbe appropriate for us to have a sunset.\r\n As a supporter of the bill it's my belief that sunsetting \r\nthese two provisions which have drawn a disproportionate amount \r\nof attention, will in fact serve as an assurance to those \r\ninside and outside of this body of our continued diligence.\r\n My amendment is not in anyway, I would repeat, intended to \r\nbe a criticism of the implementation of the Act by the \r\nadministration. It is, however, an effort to show the American \r\npeople that we will remain vigilant in reviewing these \r\nparticular provisions. Even some members have said to me that \r\nthey support provisions such as these so long as there is a \r\nterrorist threat. None have suggested to me that this terrorist \r\nthreat is going to go away within the next several years. As a \r\nmatter of fact, the President has recently suggested that this \r\nis a generational fight because it is a generational threat \r\nthat we face.\r\n For that reason, it is my believe that a sunset in the year \r\n2015 is appropriate under the circumstances. It will contribute \r\nto the continuation of vigorous oversight by this Committee, as \r\nwell as careful and conscientious implementation of this \r\nlegislation by this administration and the administrations to \r\nfollow. I do not in any way wish to suggest that this Committee \r\nhas been derelict in its duty. As a matter of fact, I would \r\ncongratulate this Committee for the work that it has done in \r\nproviding vigorous oversight.\r\n But it is my belief that from time to time Congress has not \r\nbeen as vigilant as it should be in oversight of a number of \r\ndifferent matters, and that having this with respect to what I \r\nbelieve are the two most controversial aspects of this law, \r\nwill be of benefit.\r\n I might say that there are some who have suggested that by \r\neven offering such amendment, it will be interpreted as \r\ncriticism of the underlying law on my part, or criticism of the \r\nadministration, or criticism of the current Congress. This \r\namendment is not offered for that purpose. Rather it is in some \r\nways a tribute to the work that has been done by the \r\nadministration and by this Congress, specifically this \r\nCommittee, in dealing with the very difficult and delicate \r\nbalance that we must strike, and that is to prevent those who \r\nwould wish to destroy us and what we stand for by acts of \r\nterror in ensuring that we do not tear up the Constitution in \r\nthe process of defending ourselves and those we represent.\r\n With that, I yield back the balance of my time.\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott?\r\n Mr. Scott. Mr. Chairman, I have an amendment to the--second \r\ndegree amendment to the amendment.\r\n Chairman Sensenbrenner. The clerk will report the second \r\ndegree amendment.\r\n Mr. Scott. No. 7, it's No. 7.\r\n The Clerk. An amendment to the Lungren amendment to H.R. \r\n3199 offered by Mr. Scott.\r\n Strike ``2015'' and insert ``2009.''\r\n Chairman Sensenbrenner. The gentleman from Virginia is \r\nrecognized for 5 minutes.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I support \r\nthe direction the amendment is going in. This second degree \r\namendment will change the 10-year sunset to a 4-year sunset. \r\nThe 10-year sunset would allow this to go through without \r\nreview, clean through the rest of this administration and the \r\nnext term of the--the term of the President elected in 2008 and \r\nalmost through the term of the person elected in 2012. There \r\nare many questions that we have.\r\n As it's been pointed out, we have rushed through the first \r\npassage of the PATRIOT Act, and sometimes these sunsets help \r\nyou get answers to questions that you may ask. For example, Mr. \r\nChairman, I've just been handed a letter dated July 11th, 2 \r\ndays ago, it was sent 2 days ago, received today, from the \r\nAttorney General responding to a question that was asked at a \r\nhearing on April 6th, and now because of--I imagine because of \r\nthis hearing, we're finally getting an answer to a question. \r\nWe'll have questions like many of the amendments will address, \r\nbut I think it's important that we, because of the significant \r\nintrusion in civil liberties, that we keep an eye on this, and \r\nhave the power of the sunset to require answers to questions. I \r\ntherefore would ask you to accept a 4-year sunset rather than \r\nthe 10-year sunset in the underlying----\r\n Mr. Conyers. Would the gentleman yield?\r\n Mr. Scott. I yield to the gentleman from Michigan.\r\n Mr. Conyers. I want to thank you for doing this, Mr. Scott, \r\nbecause 10 years is way too long. I mean every decade we take a \r\nlook at this, it will be new Congresses, new Presidents. There \r\ncould be a huge pile building up in the course of a decade. And \r\nI think this amendment is made real by your amendment to the \r\namendment. I support it with great enthusiasm.\r\n Mr. Scott. Thank you.\r\n Reclaiming my time, Mr. Chairman, as the Ranking Member has \r\npointed out, you can go through the next President--through \r\nthis presidential term and another entire presidential term \r\nwithout this thing coming up for renewal, and we would think \r\nthat the next President elected in 2008 ought to have the \r\nresponsibility to respond to some questions we may ask. We \r\ndon't know who that President may be.\r\n I yield back.\r\n Chairman Sensenbrenner. Does the gentleman from Virginia \r\nyield back?\r\n Mr. Scott. I yield back.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nGoodlatte.\r\n Mr. Goodlatte. Thank you, Mr. Chairman. Mr. Chairman, I \r\nwant to commend the gentleman from California for offering the \r\nunderlying amendment, and I strongly support it. There are a \r\nnumber of reasons for having sunset provisions, and I have, and \r\nmany others have supported them in a number of areas, and I \r\nwould like to see them in other areas of our legislation that \r\nwe pass because it provides for more accountability on a part \r\nof any administration, and because it gives us the opportunity \r\nto have it automatically come back to us at some point in time \r\nto make adjustments. Times change, circumstances change, and \r\nwhen that occurs, it's appropriate for the Congress to have the \r\ninitiative to act to make those changes and improvements.\r\n I do not agree with the substitute or the secondary \r\namendment offered by the gentleman from Virginia. We've just \r\nbeen through a period where we've had a 4-year sunset, and \r\nduring that time there have been uncovered no abuses on the \r\npart of the Justice Department of the provisions that we passed \r\nin the original PATRIOT Act, and I see no reason to have this \r\non such a short leash. This will give us an opportunity to put \r\nit over a longer period of time. It will help to establish the \r\nprecedent that we should impose sunsets like this in other \r\nareas where we pass legislation. It will empower the Congress \r\nin doing so because it will improve our oversight authority, \r\nand it will improve our opportunity to make changes and \r\nenhancement as time goes by, but to do it every 4 years is \r\nsimply too quickly, and given the fact that we are in a war on \r\nterror that is going to go on for a long time, I think this is \r\nan appropriate period of time for us to have a sunset \r\nprovision.\r\n And I urge my colleagues to reject the secondary amendment \r\nand to support the amendment offered by the gentleman from \r\nCalifornia.\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. Thank you very much, Mr. Chairman.\r\n I rise in support of Mr. Scott's amendment. I think we all \r\nagree that there should be sunset provisions. The gentleman \r\njust argued that this is about making sure we have sunset \r\nprovisions. He won't find an argument, I don't think, with any \r\nof us on this side of the aisle about sunset provisions. It's \r\njust a matter of how many years are we talking about?\r\n This business of fighting terrorism continues to be an \r\nevolving situation, where we're all learning more about the \r\nvarious ways in which we could be attacked, and the various \r\nways in which we could provide more security, and I still think \r\nwe have a long way to go as we look at some of our \r\ntransportation systems and our ports, and I still think that \r\nthere is public policy to be developed that could be very \r\nhelpful in fighting terrorist as it relates to the way that we \r\nbring in goods and products from other countries in particular.\r\n So I think it is important for us to have good oversight. \r\nGood oversight does not mean that you have a sunset provision \r\nthat's so far out that you don't do the reviews and make the \r\nadjustments that you need to make. Good oversight means that \r\nyou're constantly looking, you're constantly reviewing, and I \r\nthink 4 years is a reasonable amount of time. And so I would \r\nreject the original amendment by my colleague from California, \r\nand support the alternative amendment by Mr. Scott because I \r\nthink it makes more sense and it gives us the possibility of \r\ngiving the kind of oversight to this very special era of \r\nterrorism----\r\n Mr. Conyers. Would the gentlelady yield?\r\n Ms. Waters. I yield to the gentleman from Michigan.\r\n Mr. Conyers. Thank you. I heard it mentioned that this \r\nmight set a bad precedent if we start sunsetting too much.\r\n Well, we have 16 provisions that are sunsetted in the first \r\nPATRIOT Act. This is the first new one that I've heard, and \r\nthis would just--this is very critical. I mean if we're really \r\nserious about reviewing this, we can review it. Nobody will be \r\nhurt if very few are revealed. And it also should be remembers \r\nthat many times we can't even figure out where an abuse has \r\noccurred because of the general vagueness of the law as it \r\nexists right now. So I wouldn't want anybody to take to heart \r\nthat there have never been any provisions of abuse because we \r\ndon't know about it. We don't know about any because we don't \r\nhave the process to find out about any. And so I support the \r\ngentlelady from California and the gentleman from Virginia.\r\n Mr. Lungren. Mr. Chairman?\r\n Chairman Sensenbrenner. The time belongs to the gentlewoman \r\nfrom California. Do you yield back?\r\n Ms. Waters. I yield back.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. Mr. Chairman, I reluctantly rise to oppose Mr. \r\nScott's amendment to my amendment because I would so much like \r\nto see a Scott-Lungren amendment at sometime before I leave \r\nthis House.\r\n I appreciate that there are differences here, and I \r\nunderstand how we're trying to strike a balance here. I think \r\nthe point made by Mr. Goodlatte is a good one. We've just gone \r\nthrough a 4-year sunset, and I would have to say we have looked \r\ndiligently and have found no record of abuses.\r\n It is difficult to figure out what the date is. I'm \r\nreminded that I have been gone so long that I'm now back here \r\nwhen we're going to be considering a reauthorization of the \r\nVoting Rights Act. People ought to understand the Voting Rights \r\nAct sunsets. I was back here in the '80's, it was either '82 or \r\n'84 when we last--'82. So we have a sunset that goes 24 or 5 \r\nyears on that law. And yet there are changed circumstances as \r\nthe gentlelady from California mentioned. There are new things.\r\n And folks should recall there was a real question when the \r\nRanking Member of the full Committee, when Mr. Hyde, when the \r\nChairman of the full Committee and I were all serving back here \r\nin the '80's, there was a question whether the Voting Rights \r\nAct was going to be reauthorized because of changed \r\ncircumstances of those States which feel the application of the \r\nVoting Rights Act, and yet we made a decision that it was \r\nappropriate. And then when we did that, we gave it this 20-some \r\nyear life with a sunset.\r\n So the suggestion that a 10-year sunset is irrelevant or \r\nsomehow meaningless, I would reject based on the experience \r\nthat I've seen with another major law that we have dealt with.\r\n And by the way, I commend the Chairman for his speech \r\nbefore the NAACP this last week in which he mentioned that we \r\nexpect to deal with the reauthorization of the Voting Rights \r\nAct even a year early. So it shows we don't have to wait until \r\nthe sunset. We always have the oversight.\r\n I was trying to strike a balance here, and also I'm trying \r\nto be practical. I'm trying to have a provision that will pass \r\nand remain law when we get to the floor.\r\n I yield back the balance of my time.\r\n Mr. Watt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Watt.\r\n Mr. Watt. Thank you, Mr. Chairman. I move to strike the \r\nlast word.\r\n Chairman Sensenbrenner. The gentleman's recognized for 5 \r\nminutes.\r\n Mr. Watt. I thank the Chairman, and I'm rising in support \r\nof Mr. Scott's second degree amendment. But I think it would be \r\nremiss of me to do that without applauding first the original \r\namendment by Mr. Lungren. Perhaps the most disturbing thing to \r\nme about the Chairman's proposed mark from which we are working \r\ntoday was that it had no sunset provisions in it, and one of \r\nthe things that I had said to my constituents after we passed \r\nthe original PATRIOT Act, was that one of the real important \r\nthings that we were able to insert into that bill was a sunset \r\nprovisions. And I reminded them that throughout our history \r\nwhen we have had dramatic incidents occur, quite often the \r\nlegislative body has overreacted or has taken steps that needed \r\nto occur for a temporary period of time, but should not be the \r\nlaw henceforth now and forever.\r\n I would like not to accept the underlying proposition that \r\nterrorism will be with us forever, that forever we will have to \r\ncompromise our basic--some basic rights that I believe the \r\nPATRIOT Act has compromised. And I honestly think we ought to \r\nbe reviewing this bill and its provisions on a regular ongoing \r\nbasis. And I'm sure there's nothing in the fact that there is \r\nno sunset that prohibits us from doing that or would be nothing \r\nthat would prohibit us from going back and amending the PATRIOT \r\nAct at any point. But legislative and political realities and \r\ntime realities as they are, suggest that we simply are not \r\ngoing to do that in the absence of a sunset provision.\r\n If 4 years from now circumstances have changed for the \r\nbetter in some respects, I would be tremendously happy. If 4 \r\nyears from now circumstances have changed for the worse, \r\ntechnology may have advanced in some ways that would dictate a \r\nchange in some of the provisions of the PATRIOT Act--technology \r\nis advancing so rapidly that we don't know what's on the \r\nhorizon 4 years from now. And the longer we delay forcing \r\nourselves to review any kind of encroachments, impediments, \r\nstepping on the toes of the freedoms that our country has held \r\nso dear over the years, I think the more of a disservice we do \r\nto our country, and the more we really say to the terrorists \r\nthat we have given in to you by compromising on some of the \r\nthings that our Nation stands for and that our world should be \r\naspiring to stand for.\r\n So I know this is a judgment, this is not a knock on what \r\nMr. Lungren has tried to do. I actually applaud what he has \r\ndone and I'm delighted that we are going to have some kind of \r\nsunset in whatever goes out of this Committee--at least it \r\nlooks that way at this point--but given a choice between a \r\nshort or a longer one, I would certainly favor the shorter \r\nsunset. And I yield back the balance of my time.\r\n Chairman Sensenbrenner. The gentleman's time has expired. \r\nThe Chair moves to strike the last word and recognizes himself \r\nfor 5 minutes.\r\n I think all of the members and the public know that the \r\nsunset that is currently contained in the PATRIOT Act was \r\nsomething that I insisted upon when the PATRIOT Act was \r\nconsidered immediately after September 11. And I did so because \r\nwhenever we talk about expanding law enforcement powers and \r\npotential encroachment upon civil liberties, there is a very \r\nsubjective line that is drawn that nobody will know whether it \r\nwas done correctly or not until there has been some experience \r\nunder the new law.\r\n I guess what puzzles me a bit is that the people who are \r\narguing for a shorter sunset now were the ones that were \r\narguing for a longer sunset 4 years go.\r\n Be that as it may, we have had almost 4 years of experience \r\nunder the PATRIOT Act. There has been no section of the 16 \r\nsections of the PATRIOT Act where law enforcement powers were \r\nexpanded that has been declared unconstitutional by a Federal \r\ncourt. There also have been no lawsuits brought under the Frank \r\namendment that provides a civil remedy with statutory damages \r\nfor Americans whose civil rights were violated under the \r\nPATRIOT Act. And the Justice Department Inspector General has \r\nfound no civil rights violations under the PATRIOT Act, and he \r\nwas given that specific authority to investigate and reach \r\nthose conclusions as a part of those protections that this \r\nCommittee wrote in the PATRIOT Act in September and October \r\n2001.\r\n Having said that, let me say that what type of oversight is \r\ndone by any congressional Committee, this one or any of our \r\nother Committees, is entirely dependent upon the Committee's \r\nattitude toward oversight and specifically the attitude of the \r\nChairman of the Committee and the Chairmen of the Subcommittees \r\ntoward oversight. I think people who have seen my performance \r\nhere and prior to that in the Science Committee realize that I \r\nam an oversight hawk, and I have been as much of a hawk against \r\nan administration of my own party as Chairman of this Committee \r\nas I was over NASA during the Clinton administration as \r\nChairman of the Science Committee. Oversight was one of the \r\nconstitutional responsibilities the Founders gave the Congress, \r\nand in my opinion we should be doing more of it rather than \r\nless of it.\r\n But chairmen come and chairmen go, and I am term limited as \r\nChairman, and 2 years from now there will be another person \r\nthat will be sitting in this chair that may have a different \r\nview toward oversight.\r\n The oversight that Mr. Conyers and I have done on the \r\nPATRIOT Act have been as a result of Mr. Conyers and my \r\ninsistence that the oversight be vigorous and pointed. And we \r\nhave had differences with the Justice Department and \r\nspecifically former Attorney General Ashcroft to the point \r\nwhere I had to threaten to subpoena him in order for us to get \r\ninformation that this Committee needed to have in the discharge \r\nof our oversight responsibilities. I can say that in the last \r\ncouple of years the responses from the Justice Department had \r\nbeen much better, and I comment them for that.\r\n But again, this is my philosophy and that of Mr. Conyers \r\ntoward oversight, and that may change as time goes on.\r\n I support, reluctantly, the longer sunset provisions, and \r\nthe reason I do that is because it will force a review. But let \r\nme say, I don't think we should have different strokes for \r\ndifferent folks, saying that we should have a real short sunset \r\non the PATRIOT Act and a real long one on the Voting Rights \r\nAct. The principle is the same. And I will support and \r\nintroduce legislation for a very long period of extension of \r\nthe Voting Rights Act because I think that the 25 years that \r\nwas passed in 1982 worked very well.\r\n Having a sunset as proposed by Mr. Lungren, in my opinion \r\nwill get the debate on the PATRIOT Act out of the political \r\narena, and believe me, it is in the political arena now. And \r\nhaving debate on the PATRIOT Act being a part of a presidential \r\nelection campaign and then the new Congress immediately \r\nafterwards, this debate has not been the best in terms of \r\ndealing with the actual issues of the PATRIOT Act.\r\n So I would ask the members of this Committee to vote \r\nagainst the Scott amendment for the shorter sunset, for the \r\nLungren amendment for the longer sunset, and I would urge \r\nwhomever succeeds me as Chairman of the Committee in January \r\n2007 to be just as diligent in discharging oversight \r\nresponsibilities as I believe Mr. Conyers and I have been.\r\n Mr. Watt. Mr. Chairman, could I ask for unanimous consent \r\nfor one additional minute and ask the Chairman to yield for a \r\nquestion?\r\n Chairman Sensenbrenner. Without objection, the Chair is \r\ngiven an additional minute. I yield to the gentleman from North \r\nCarolina.\r\n Mr. Watt. The Chairman made a statement about somebody, \r\nsome period of time ago when we were doing the original bill, \r\nopposing a shorter sunset. I wanted to make sure that we didn't \r\nleave the wrong impression here. I don't have a recollection of \r\nthat on my part.\r\n Chairman Sensenbrenner. If I can reclaim----\r\n Mr. Watt. Maybe you were referring to somebody else.\r\n Chairman Sensenbrenner. If I can reclaim my time, I can \r\nunderstand why he didn't have a recollection on that because \r\nthe final sunset provisions were negotiated in the Speaker's \r\noffice, and it was the then Democratic controlled Senate that \r\nwanted a real short sunset, and it was Mr. Conyers and I who \r\nwere present in that meeting that wanted a longer one.\r\n Mr. Watt. A longer one or a shorter one?\r\n Chairman Sensenbrenner. That was the difference between 3 \r\nyears, 4 years and 5 years. We were for 5, they were for 3, and \r\nwe split the difference.\r\n Mr. Watt. So it wasn't as dramatic as we're talking about \r\nhere today?\r\n Ms. Lofgren. Would the Chairman yield?\r\n Chairman Sensenbrenner. The Chair will ask unanimous \r\nconsent for an additional minute and yield to the gentlewoman \r\nfrom California.\r\n Ms. Lofgren. I will not use an entire minute. I would just \r\nlike to note for the record that during the weekend drafting \r\nsession on the PATRIOT Act I recommended a 2-year statute of \r\nlimitations, and I thank the gentleman for yielding.\r\n Chairman Sensenbrenner. Duly noted.\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. My time has expired.\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Delahunt.\r\n Mr. Delahunt. I thank the Chairman. I would note that he \r\nmakes the observation that within the provisions of the PATRIOT \r\nAct there appears to be no abuse that's been discovered by the \r\nDepartment of Justice. Now, one could opine that the sunset \r\nprovision itself serves in some way as deterrence to abuse \r\nbecause there will be inevitably hearings to review the \r\nconduct. So I grant you the fact that, at least as it relates \r\nto the provisions of the PATRIOT Act, there does not appear to \r\nbe any abuse that has been discovered so far.\r\n At the same time I think we have to recognize that the \r\nInspector General of the Department of Justice did find serious \r\nproblems with the detainees being held in New York, but I don't \r\nwant to digress.\r\n And I applaud the Chairman for his aggressive oversight. I \r\nalso applaud the gentleman from California. I think this is a \r\nstep in the right direction. I want it as a matter of record, \r\nthat my own opinion is that 2 years is perfect, and I would go \r\nso far as to sunset the entire PATRIOT Act, because as the \r\nChairman has indicated, Chairmans come, Chairmans go, \r\nminorities come, they change, and majorities come and change. \r\nBut there is a natural tension between the branches that's \r\nhealthy in a democracy.\r\n And what I found particularly revealing during the course \r\nof the hearings that were conducted by Mr. Coble with your \r\nsupport, obviously, was that we received a level of cooperation \r\nand collaboration from the Department of Justice that I have \r\nnot experienced in my previous 9 years of service on this \r\nCommittee.\r\n I think as much as it is about the PATRIOT Act, it is also \r\nabout the role of Congress in terms of the relationship with \r\nthe Executive and the Judiciary, and it provides us with \r\nleverage to encourage cooperation and collaboration, because I \r\nknow you, myself and other members, and not just this \r\nparticular Committee, have found at times it extremely \r\ndifficult to receive the kind of cooperation that ought to be \r\nforthcoming from the Executive.\r\n I'm reminded of serving on the Government Reform Committee \r\nwhen there was a inquiry into the conduct of the Federal Bureau \r\nof Investigation in Boston, and the Republican Chair of that \r\nCommittee, Dan Burton, as you did, had to threaten the Attorney \r\nGeneral of the United States with a contempt citation to secure \r\ncooperation.\r\n So I say to my colleagues on both sides--and by the way, \r\nthis is not a partisan issue, this is historic and is an \r\ninstitutional issue. I don't think we can sunset often enough, \r\nand I think if we chart a different course in terms of the \r\nfuture, the sunset will serve the Congress well despite who the \r\nChairman is. And again, I would compliment the Chair on being \r\naggressive in terms of oversight, and I would go so far as to \r\nsay before you move on, I would commend to you consideration of \r\nestablishing within the Committee an additional Subcommittee to \r\ndeal specifically with the issue of oversight in \r\ninvestigations.\r\n It's been done under Chairman Hyde in the International \r\nRelations Committee, and I think it's overdue and it's needed.\r\n With that I'll yield back.\r\n Mr. Scott. Would the gentleman yield?\r\n Mr. Delahunt. I yield to the gentleman from Virginia.\r\n Mr. Scott. Thank you. I thank the gentleman for yielding.\r\n As the gentleman from Massachusetts is pointing out, \r\nwhatever success there has been with the PATRIOT Act I think is \r\nbecause of the sunset, not in spite of the sunset. We've had \r\nproblems with the national security letters, reclassification \r\nor misclassification of some cases of terrorists, racial \r\nprofiling, as the Chairman has indicated, we've had to threaten \r\nsubpoenas, and clearly there's been more cooperation from the \r\nadministration in those inquiries involving sections with a \r\nsunset than those involving sections without a sunset. So I \r\nwould hope that we would keep a sunset that would at least \r\nrequire the next President of the United States to have some \r\ntime during his administration where he'll have to respond to \r\nquestions.\r\n Thank you.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n The gentleman from Arizona, Mr. Flake.\r\n Mr. Flake. I just want to say in Arizona we love sunsets. I \r\nparticularly like sunsets of all Government programs, but in \r\nthis case I would thank the gentleman from California for \r\noffering this compromise, this 10-year sunset, and I think it's \r\nappropriate and I plan to support it.\r\n With that I yield back.\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nNadler.\r\n Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, you \r\nraised the question of comparing the sunset to the sunset of \r\nthe Voting Rights Act. I think there's a difference and all \r\nsunsets are not equivalent. This sunset is dealing with very \r\nsensitive, as I've said before, as we've all said before, very \r\nsensitive powers that we're giving Government that pose \r\npotential threats to the liberty that we all hold dear.\r\n Now, it's easy to say there have been abuses, and maybe \r\nthere haven't, although there's still a lot of secrecy, and I \r\nwouldn't agree that there have been no abuses. But even if \r\nthere hadn't been, doesn't mean there won't be next year under \r\nthe next Chairman of this Committee, under the next President, \r\nunder the next Attorney General.\r\n Sunsets in this respect make us keep reviewing it, and \r\nthat's fine. What is the danger of a sunset, that it makes us \r\ndo a little more work? So what? It keeps it front and center, \r\nand this kind of thing ought to be kept front and center. The \r\nVoting Rights Act imposes certain requirements on States to \r\nmake sure that their citizens get the rights they're entitled \r\nto. Should it sunset? Well, maybe, because maybe those States \r\nnow have changed and don't have to have a Federal imposition on \r\nthem to guarantee those rights. But worse comes to worst, so \r\nwhat again? They're giving the rights that ought to be given.\r\n Here the sunset is to make sure that our citizens have \r\nliberty and rights, and we ought to have a fairly frequent \r\nsunset. I commend the gentleman from California for offering \r\nthis amendment. I wish it were for more than just these two \r\nsections, and there will be amendments for sunsets for more \r\nsections before this markup is over, but 10 years is too long.\r\n Lots of things can happen in 10 years. Why shouldn't the \r\nnext President have to be concerned about--a 4-year sunset \r\nmeans the next President, not this one. Why shouldn't the next \r\nPresident have to be concerned about justifying retention of \r\nthese police powers? We don't know how long the war on terror \r\nis going to go on, we don't know how it's going to be waged. We \r\ndon't know if abuses are going to occur.\r\n And a 4-year amendment, and if that amendment--and if that \r\nfails, we'll offer an amendment for a 6-year sunset--at least \r\nkeeps our feet to the fire. That's what this is about, keeping \r\nour feet to the fire to keep our eye on the ball to protect the \r\nliberty of American citizens against possible abuses, and it's \r\nnothing to say we're not saying anything by this amendment or \r\nby trying to speed up this amendment by the 4-year secondary \r\namendment, to say that the current Attorney General or the \r\ncurrent President or the current Chairman of this Committee, or \r\nthe current anybody, is doing anything right or wrong. It's \r\nsimply saying that it's a useful tool to make sure that we \r\nfocus on it more than once every 10 year, and frankly, the \r\nliberties of Americans are worth focusing on a lot more often \r\nthan once every 10 years.\r\n So I support the Scott secondary amendment, and I yield \r\nback.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nSmith.\r\n Mr. Smith. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Smith. Mr. Chairman, I oppose the Scott amendment and I \r\nexpect to also oppose the underlying amendment, and I want to \r\nexplain why.\r\n It's likely on the underlying amendment that I'm going to \r\nfind myself in the good company of many of my colleague on the \r\nother side of the podium, though not necessarily for the same \r\nreason. They feel that the 10-year period is too long. I happen \r\nto feel that we don't need sunsets at all for the reasons that \r\nhave already been stated by many others.\r\n The PATRIOT Act has worked well. There have been no abuses. \r\nAnd regardless of whether there are sunsets or not, I am sure \r\nthat the oversight will continue, and that can address any \r\npossible abuses that might come up.\r\n I'd also like to note, Mr. Chairman, that it seems to me \r\nthat the arguments made against the 3-year sunset could also be \r\nmade against the 10-year sunset. As I say, the PATRIOT Act has \r\nbeen working well.\r\n So I just wanted to state for the record that I am going to \r\noppose both the Scott amendment and the underlying amendment as \r\nwell.\r\n I'll yield back.\r\n Mr. Weiner. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nWeiner.\r\n Mr. Weiner. Thanks, Mr. Chairman. I have yet to really get \r\nan understanding from the sponsor of the amendment--and \r\nfrankly, I don't even--from the base amendment, and frankly \r\nfrom you, Mr. Chairman, of what's the harm of going to 2009? I \r\nthink the Chairman deserves a great deal of credit for (A) \r\ninserting the sunset, but also generally the way that we've \r\ntaken on issues here.\r\n I mean essentially what--I think in our Committee under \r\nyour leadership for the first time in a very long time we did a \r\nreauthorization of the Justice Department, something that had \r\ngone on for years without being reauthorized.\r\n Frankly, what I would say that this is, is essentially a \r\nforced reauthorization. I think it has been salutary to have \r\nthe sunset provisions in because it's gotten people on both \r\nsides of the issue having a discussion about it. It's forced us \r\nto be at this point--I doubt very much if there were not sunset \r\nprovisions in the original we'd be having hearings right now. \r\nAnd I think on both sides of the aisle concerns have been \r\nexpressed about how far reaching or whether it was not far \r\nreaching enough.\r\n I am puzzled by whether or not making it 2009 in any way \r\nweakens our chances on the floor. That's the only argument I've \r\nheard from the gentleman from California about why 2015 rather \r\nthan 2009, it strikes a so-called balance. Frankly, the \r\nconcerns that have been raised by opponents would be further \r\nassuaged by having a shorter sunset, not a longer sunset, that \r\nif you believe that you're trying to get votes from people who \r\nare like myself, who are kind of some parts of the bill we've \r\ngot no problem with, some parts of the bill we have serious \r\nproblems with. There are people on the far right and far left \r\nwho expressed concerns.\r\n If you truly want to give the tools to the Justice \r\nDepartment for additional time, and you don't want the bill to \r\nbe defeated all together, a shorter sunset seems to be better \r\nway.\r\n And also from the day-to-day practical prosecution of the \r\nlaw, I find it hard to believe that any prosecutor would say or \r\nany criminal would say, well, here's a decision I'm going to \r\nmake because we've got a sunset coming up in a few years. I \r\ndon't think any terrorist is going to say, all right, I'm going \r\nto hold off a little longer because we have a sunset coming up \r\nin 2009. So I'm in 2007 contemplating a crime, but I'm going to \r\nwait because I think it's going to sunset.\r\n I mean practically speaking, that's not going to happen, \r\nand if that makes them push off their plans for terrorism, then \r\nwe should have sunset every year because maybe they'll just \r\nkeep putting it off and see if we don't renew it.\r\n I guess my simple question is--and it hasn't been answered \r\nhere--is what's the matter with a shorter sunset? How does it \r\nharm anyone? Why does the Justice Department mind that much? \r\nIt's not an indictment of them or it's not ad argument that \r\nthey've done things poorly. What it is, is that the present \r\nsunset has been a successful fulcrum, (A) to get this back \r\nbefore this Committee; (B) to get a full discussion of it \r\nbefore the country.\r\n You know you say that there haven't been abuses. We've also \r\nfound out in a lot of cases there hasn't been a great deal of \r\nuse of it. That's something worth knowing as well that would \r\nhave not come out, would not have had the pressure to come out \r\nwere it not for a shorter sunset.\r\n And with that, I yield the balance of my time to the \r\ngentleman from Massachusetts.\r\n Mr. Delahunt. I applaud the gentleman for his, I think, \r\ninsightful comments. I think we should be thinking about when \r\nthis legislation comes to the floor because there are concerns \r\nthere, and only has to remember some of the votes that we have \r\nwitnessed that have occurred on the Floor because people have \r\nlegitimate concerns.\r\n And I dare say, this sunset, this sunset and the duration \r\nof the sunset--and it should be expanded in my opinion--is \r\nsomething that I think the majority of members of the House \r\nwill find--will welcome.\r\n Just to support my earlier comments about oversight and the \r\nrelationship between the branches, someone just passed me a \r\npress release from Senator Collins and Senator Lieberman dated \r\nJune 14, who were speaking about the need for the \r\nadministration to fulfill its obligations under the National \r\nIntelligence Reform and Terrorist Prevention Act of 2004, and \r\nI'll submit this into the record.\r\n Chairman Sensenbrenner. Without objection.\r\n [The press release was not available in time to be included \r\nin this report.]\r\n Mr. Delahunt. They noted a series of reports, strategic \r\nplans and preliminary actions whose deadlines have come and \r\ngone. Among them, the National Transportation Strategy, the \r\nfirst step towards streamlining the Federal security clearance \r\nprocess, a number of port security strategic plans, aviation \r\nsecurity staffing standards, a baggage screening cost-sharing \r\nplan, three reports on diplomatic initiatives to root out \r\nterrorists.\r\n I dare say that if we do not have, as Mr. Weiner indicated, \r\nthe leverage, the fulcrum, you know, even if we mandate \r\nreports--it would be interesting for me if both majority and \r\nminority staff would review the reports mandated by the PATRIOT \r\nAct and other antiterrorism statutes to see whether they've \r\nbeen filed.\r\n Chairman Sensenbrenner. The time of the gentleman from New \r\nYork has expired. The question is----\r\n Mr. Schiff. Mr. Chairman? Mr. Chairman, to your left.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff.\r\n Mr. Schiff. I wouldn't need to make it quick if--well, \r\nanyway.\r\n Thank you, Mr. Chairman. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Schiff. I want to join in support of the secondary \r\namendment, and the reason I wanted to be recognized on this--I \r\nknow many others have spoken already, but I frankly think this \r\nis probably the most important amendment we're going to have \r\ntoday, and indeed I think one of the most important provisions \r\nthat we in the original PATRIOT bill was the sunset provision \r\nthat the Chairman insisted upon. And at the time I strongly \r\nsupported a 2-year sunset, even a shorter leash.\r\n My concern with that sunset being 4 years originally was \r\nthat it might take us 4 years before the Committee, as a \r\nCommittee, really did the kind of vigilant oversight that we \r\nshould do. The PATRIOT bill was basically a bargain. It said we \r\nwill give law enforcement greater power, and in exchange we \r\nwill do greater oversight.\r\n I think many of the powers of the PATRIOT bill needed to be \r\nconveyed to keep pace with changes in technology and changes in \r\nthe way that terrorists operated. But much as I was concerned, \r\nI think that with the 4-year sunset the Committee as a \r\nCommittee did not do oversight until 3\\1\/2\\ years into the \r\nsunset. And I appreciate what the Chairman did with the Ranking \r\nMember individually, but the Committee as a Committee, in terms \r\nof holding hearings, having witnesses, and giving each of the \r\nmembers a chance to participate in the oversight really didn't \r\nhappen till 3, 3\\1\/2\\ years into the life of the PATRIOT bill.\r\n And I'm afraid that if we extend this by 10 years, it will \r\nbe 9\\1\/2\\ years before we go through this exercise again, and \r\nthat's just too long. It's not just a function of the Chairman \r\nnot being the Chairman. Most of the members of this Committee \r\nwill no longer be on the Committee. Heck, most of the members \r\nof this Committee will probably no longer be in the Congress \r\nwho were present when the bill passed and are present today.\r\n To put things in context, my colleague from New York, Mr. \r\nWeiner, he'll be finishing his second term as mayor of New York \r\nwhen this comes up again. [Laughter.]\r\n My 3-year-old will be a teenager, and I'm not ready for \r\nthat. [Laughter.]\r\n I'm not ready for either of those things. [Laughter.]\r\n No, I am ready for Anthony to be mayor.\r\n We reauthorize departments with great frequency. We \r\nreauthorize our transportation bill every 6 years. There's \r\nlittle risk, unless there are great abuses, that if we \r\nsunsetted this bill in another 4 years, that it wouldn't be re-\r\nextended in 4 years. I don't expect there will be abuse of the \r\nbill or dramatic abuse of the bill, and I would expect that \r\nwith a 4-year sunset, the worst that will happen is that we'll \r\nbe back here in 3\\1\/2\\ years, and I would hope sooner, to be \r\nlooking at some of these provisions again.\r\n So the downside--I can't even find the upside--in that it \r\ncompels us as a Committee to do the oversight that we should be \r\ndoing, I think, is substantial. And probably a more realistic \r\nsunset date would be the single greatest step that could be \r\ntaken by the majority to outreach to the minority to have a \r\nreauthorization that enjoys very broad bipartisan support.\r\n With that, Mr. Chairman, I yield back.\r\n Chairman Sensenbrenner. The question is on the Scott second \r\ndegree amendment to the Lungren amendment. Those in favor will \r\nsay aye? Opposed, no?\r\n The noes appear to have it.\r\n Mr. Conyers. A record vote.\r\n Chairman Sensenbrenner. Record vote is requested and will \r\nbe ordered. Those in favor of the Scott amendment to the \r\nLungren amendment will, as your names are called, answer aye; \r\nthose opposed, no. The clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n [No response.]\r\n The Clerk. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? The gentleman from South Carolina, Mr. \r\nInglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no.\r\n Chairman Sensenbrenner. There are no further members who \r\nwish to cast or change their vote. The clerk will report.\r\n The Clerk. Mr. Chairman, there are 15 ayes and 21 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n The question----\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. For what purpose does the gentleman \r\nfrom New York seek recognition?\r\n Mr. Nadler. Mr. Chairman, I have a secondary amendment at \r\nthe desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Mr. Chairman, I have two amendments at the desk.\r\n Mr. Nadler. The 2011.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Second degree amendment to the Lungren amendment \r\nto H.R. 3199, offered by Mr. Nadler. Strike ``2015'' and insert \r\n``2011.''\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The chair is prepared to declare \r\nthe Committee in recess until 2 o'clock, at which time, Mr. \r\nNadler will be recognized for 5 minutes to explain his \r\namendment. Members will please be prompt.\r\n The Committee is in recess.\r\n [Whereupon, the Committee was recessed from 12:27 p.m. to \r\n2:07 p.m.]\r\n Chairman Sensenbrenner. A working quorum is present.\r\n When the Committee recessed for lunch, pending was an \r\namendment offered by the gentleman from California, Mr. \r\nLungren, to which a second degree amendment by the gentleman \r\nfrom New York, Mr. Nadler, had been offered. We will now resume \r\nconsideration of the Nadler second degree amendment, and the \r\ngentleman from New York, Mr. Nadler, is recognized for 5 \r\nminutes.\r\n Mr. Nadler. Thank you. Thank you, Mr. Chairman.\r\n Mr. Chairman, this amendment, this secondary amendment \r\ndoesn't need too much discussion. Most of the discussion I \r\nthink we can just read into the record, the discussion on the \r\nlast secondary amendment for the 4-year extension. This simply \r\nsays instead of a 10-year extension, as Mr. Lungren would have \r\nit--sunset, rather--it should be a 6-year sunset.\r\n Before we broke, we had discussion on Mr. Scott's amendment \r\nfor a 4-year sunset, and the majority thought that that was too \r\nfast, that 10 years was a better idea. I am compromising at 6 \r\nyears.\r\n Now, one objection--and frankly, again, just to be brief, \r\nwhen you are dealing with liberty and with giving Government \r\nmore power, then I think 10 years is just too long. Now, it had \r\nbeen expressed that maybe if a 4-year extension was too short \r\nand, among other reasons, that would come into effect in 2009, \r\nit would put it into the next presidential election--well, this \r\nwould not. This would be 2011. It would be the third year of \r\nthe next presidential term. It doesn't get mixed up in party \r\npolitics in the 2008 election.\r\n And again, if we think these things should be sunsetted--\r\nand I certainly agree they should be--a 6-year sunset is \r\nreasonable. Over 6 years we can see what happens. And to \r\nrequire Congress to look at things every 6 years, things that \r\npotentially threaten people's liberties, albeit maybe we have \r\nto do it because of terrorism, is not too often to do. So I \r\nthink 6 years is a reasonable amount of time, and I offer the \r\nsecondary amendment to what I regard as a good amendment by Mr. \r\nLungren.\r\n I yield back.\r\n Chairman Sensenbrenner. The chair recognizes himself for 5 \r\nminutes in opposition to the amendment.\r\n I rise in opposition to the amendment. The gentleman from \r\nNew York had it half right. He was right when he said that all \r\nof the arguments that were made in favor of the Scott amendment \r\napplied to his amendment. What he omitted is that all of the \r\narguments made against the Scott amendment also apply to this \r\namendment. And since the Scott amendment was rejected, I think \r\nwe ought to reject this----\r\n Mr. Nadler. Would the gentleman yield for a second?\r\n Chairman Sensenbrenner. Absolutely.\r\n Mr. Nadler. All the arguments but one, as I pointed out. \r\nOne of the arguments against the Scott amendment was that it \r\nwould put it into the 2008 presidential election because it \r\nwould sunset in 2009. This does not do that. This would sunset \r\nin 2011, the third year of a presidential term, and that \r\nargument----\r\n Chairman Sensenbrenner. And reclaiming my time----\r\n Mr. Nadler.--is inapplicable.\r\n Chairman Sensenbrenner. Reclaiming my time, 2015 is the \r\nthird year of a presidential term, too. And I yield back the \r\nbalance of my time.\r\n The question is on agreeing to the Nadler second degree \r\namendment to the Lungren amendment. Those in favor will say \r\naye? Opposed, no?\r\n The noes appear to have it.\r\n rollcall will be ordered. Those in favor of the Nadler \r\namendment to the Lungren amendment will, as your names are \r\ncalled, answer aye; those opposed, no. And the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. Pass.\r\n The Clerk. Mr. Green, pass. Mr. Keller?\r\n [No response.]\r\n The Clerk. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n [No response.]\r\n The Clerk. Mr. Pence?\r\n [No response.]\r\n The Clerk. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n [No response.]\r\n The Clerk. Mr. Gohmert?\r\n [No response.]\r\n The Clerk. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n [No response.]\r\n The Clerk. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n [No response.]\r\n The Clerk. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n [No response.]\r\n The Clerk. Ms. Wasserman Schultz?\r\n [No response.]\r\n The Clerk. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? The gentleman from Illinois, Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nGallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nGoodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nGohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no.\r\n Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. \r\nGreen?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no.\r\n Chairman Sensenbrenner. Further members in the chamber who \r\nwish--The gentleman from Virginia, Mr. Boucher.\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 9 ayes and 18 noes.\r\n Chairman Sensenbrenner. And the second degree amendment is \r\nnot agreed to.\r\n The question is on----\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott, for what purpose do you seek recognition?\r\n Mr. Scott. Mr. Chairman, I have a unanimous consent request \r\nfor a Scott-Lungren amendment.\r\n Chairman Sensenbrenner. The gentleman will state the \r\nrequest.\r\n Mr. Scott. The amendment reads that the provisions shall \r\ncease to have effect on December 31, 2005--excuse me, 2015. The \r\namendment would be to insert language ``and after,'' so it \r\nwould read, ``would cease to have effect on and after December \r\n31, 2015.''\r\n Chairman Sensenbrenner. Without objection, the modification \r\nto the amendment is agreed to. Hearing none, so ordered.\r\n The question now occurs on the Lungren amendment as \r\nmodified. Those in favor will say aye? Opposed, no?\r\n The ayes appear to have it.\r\n Mr. Schiff. Mr. Chairman?\r\n Chairman Sensenbrenner. Does the gentleman from California \r\nwish to ask for a rollcall?\r\n Mr. Schiff. No. I just had an amendment at the desk.\r\n Chairman Sensenbrenner. The other gentleman from California \r\nasked for a rollcall. rollcall will be ordered.\r\n Those in favor of the Lungren amendment as modified will, \r\nas your names are called, answer aye; those opposed, no. And \r\nthe clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. Aye.\r\n The Clerk. Mr. Hyde, aye. Mr. Coble?\r\n Mr. Coble. Aye.\r\n The Clerk. Mr. Coble, aye. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. Aye.\r\n The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. Aye.\r\n The Clerk. Mr. Chabot, aye. Mr. Lungren?\r\n Mr. Lungren. Aye.\r\n The Clerk. Mr. Lungren, aye. Mr. Jenkins?\r\n Mr. Jenkins. Aye.\r\n The Clerk. Mr. Jenkins, aye. Mr. Cannon?\r\n Mr. Cannon. Aye.\r\n The Clerk. Mr. Cannon, aye. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. Aye.\r\n The Clerk. Mr. Inglis, aye. Mr. Hostettler?\r\n [No response.]\r\n The Clerk. Mr. Green?\r\n Mr. Green. Aye.\r\n The Clerk. Mr. Green, aye. Mr. Keller?\r\n [No response.]\r\n The Clerk. Mr. Issa?\r\n Mr. Issa. Aye.\r\n The Clerk. Mr. Issa, aye. Mr. Flake?\r\n [No response.]\r\n The Clerk. Mr. Pence?\r\n [No response.]\r\n The Clerk. Mr. Forbes?\r\n Mr. Forbes. Aye.\r\n The Clerk. Mr. Forbes, aye. Mr. King?\r\n Mr. King. Aye.\r\n The Clerk. Mr. King, aye. Mr. Feeney?\r\n Mr. Feeney. Aye.\r\n The Clerk. Mr. Feeney, aye. Mr. Franks?\r\n [No response.]\r\n The Clerk. Mr. Gohmert?\r\n Mr. Gohmert. Aye.\r\n The Clerk. Mr. Gohmert, aye. Mr. Conyers?\r\n Mr. Conyers. No.\r\n The Clerk. Mr. Conyers, no. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n [No response.]\r\n The Clerk. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n [No response.]\r\n The Clerk. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n [No response.]\r\n The Clerk. Mr. Chairman?\r\n Chairman Sensenbrenner. Aye.\r\n The Clerk. Mr. Chairman, aye.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nGoodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye.\r\n Chairman Sensenbrenner. Further members in the chamber who \r\nwish to cast or change--Yes, the gentleman from Arizona, Mr. \r\nFlake?\r\n Mr. Flake. Aye.\r\n The Clerk. Mr. Flake, aye.\r\n Chairman Sensenbrenner. Further members in the chamber who \r\nwish to cast or change their votes? If not, the clerk will \r\nreport.\r\n The Clerk. Mr. Chairman, there are 26 ayes and 2 noes.\r\n Chairman Sensenbrenner. And the amendment is agreed to.\r\n Are there further amendments?\r\n The gentleman from California, Mr. Schiff.\r\n Mr. Schiff. Mr. Chairman, I know my colleague from New York \r\nhas a burning sunset amendment. I would ask to be recognized \r\nafter one of my colleagues, after Mr. Nadler.\r\n Chairman Sensenbrenner. The chair is trying to share the \r\nwealth, but if this is not the time for the gentleman from \r\nCalifornia to partake of the wealth, for what purpose does the \r\ngentleman from New York seek recognition?\r\n Mr. Nadler. Thank you, Mr. Chairman. I appreciate the \r\nforbearance of the gentleman from California.\r\n Mr. Chairman, I do think--I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Mr. Chairman, I have three Mr. Nadler \r\namendments.\r\n Mr. Nadler. It says ``strike section 3.'' This is the one \r\nby Mr. Nadler and Mrs. Lofgren.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler \r\nand Ms. Lofgren. Strike section 3 and insert the following: \r\nSecurity. 3. Sunset. Section 224 of the USA PATRIOT ACT is \r\namended by--(1) Inserting ``206'' in section (a) after \r\n``205,''; (2) Inserting ``215'' in section (a) before ``216,''; \r\nand (3) Striking ``2005'' and inserting ``2015.''\r\n The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Nadler. Thank you, Mr. Chairman.\r\n Mr. Chairman, this amendment, which is short, is not quite \r\nself-explanatory. What it does is extend the 10-year sunset, \r\nwhich we have just adopted for two sections, to the other 14 \r\nsections that are currently sunsetted under the law and that \r\nunder the bill in chief would be permanent. This simply says \r\nthat all the reasons for the sunsets that we just passed for 10 \r\nyears for the two existing sections, for these two sections, we \r\nshould do for the other 14 sections that do sunset now, and \r\ninstead of permanentizing them, we should sunset them after 10 \r\nyears.\r\n So I take from Mr. Lungren the 10 years and we should--all \r\nthe same reasons why the two sections that we just did should \r\nbe sunsetted in 10 years apply to these sections, too. They are \r\nextensions of various powers. We are to review them. This \r\nincludes Section 201, Authority to Intercept Wire or Electronic \r\nCommunications Relating to Terrorism; 202, Wiretaps Relating to \r\nComputer Fraud and Abuse Offenses; Section 203, Authority to \r\nShare Electronic, Wire, and Oral Interception Information with \r\nForeign Intelligence Operations; Duration of FISA Surveillance \r\nof Non-USA Persons; Seizure of VoiceMail Messages Pursuant to \r\nWarrants; Pen Register and Trap and Trace; Interception of \r\nComputer Trespass Communications; and so forth.\r\n All of these are basically new powers granted by the \r\nPATRIOT Act. All of them were sunsetted now; all of them, I \r\nthink, should be sunsetted in 10 years for the same reasons.\r\n And I urge the adoption of this amendment, and I yield \r\nback.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Nadler. Oh, yes. I do not yield back, I yield to the \r\ngentlelady from California.\r\n Ms. Lofgren. I will be very quick. As the cosponsor of the \r\namendment, I won't repeat what Mr. Nadler said, but I would \r\nmerely note that some of the provisions that would be covered \r\nby the amendment really are provisions that relate to \r\ntechnology. And it is important both for civil liberties, but \r\nalso from the technological point of view, that we have a \r\nschedule for reviewing those issues. Because the technology, I \r\nguarantee you, will change, and if we don't have a set time for \r\nus to review those changes, we may end up with a consequence \r\nthat we never intended. And I think that is an additional \r\nreason to support the amendment.\r\n I thank the gentleman for yielding, and yield back.\r\n Chairman Sensenbrenner. Does the gentleman from New York \r\nyield back?\r\n Mr. Nadler. Yes, I do.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nIssa?\r\n Mr. Issa. Thank you, Mr. Chairman. I rise in opposition to \r\nthe amendment.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Issa. Mr. Chairman, I know this is well-intentioned, \r\nbut I would like to point out to all of my colleagues that when \r\nwe did this, the PATRIOT Act, initially, one of the reasons for \r\nthe sunsets was this was new. And we wanted the 4 years in \r\nwhich to observe what happened. We have had not only the 4 \r\nyears but countless hearings. We have looked at this in detail. \r\nMr. Lungren, appropriately, looked and said although there has \r\nbeen no misconduct, he would like to, and we have now passed an \r\namendment to hold open a little bit longer, or a lot longer \r\nperiod on two provisions.\r\n But I think that we fail to do our job as a Committee if we \r\nsimply punt and say, well, we are going to keep it all open. \r\nAnd I would suggest that, if we are going to do that, then let \r\nus simply amend I think it is Section 28, and, you know, we \r\ncould do everything. We could sunset the entire Homeland \r\nSecurity, for that matter, every 10 years.\r\n I think there is a point of, if we work together \r\ndiligently--and I promised my office to work together just as I \r\nhave seen the Chairman's office working--to make sure that we \r\nhave, if we have concerns, we have areas both here and, \r\npotentially, on the floor, that we reach those amendments on a \r\nbipartisan basis so that we can make sure that we don't need to \r\nsimply leave something unanswered and hope for the best for the \r\nnext 10 years.\r\n I would ask my colleagues, at a minimum after this \r\namendment, to delay any further amendments on sunsetting in \r\nfavor of let's get to substantive changes that might be \r\nappropriate so that we can not have sunsetting, but rather have \r\na law which we are confident will last for the entire decades \r\nto come.\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Issa. I would yield.\r\n Mr. Nadler. Thank you. Now, this is, as far as I know, the \r\nlast amendment on sunsetting. But I would point out that \r\nnothing in sunsetting--we don't hold it open for 10 years. That \r\nis not correct. The law is the law. This makes us come back and \r\nreview it in 10 years. And certainly nothing that says review \r\nit in 10 years precludes our reviewing it in 10 minutes or 10 \r\nmonths or next year, as we ought to on a continuing basis.\r\n But at the minimum, since these are police powers that have \r\nto balance carefully, we ought to at least make sure that our \r\nsuccessors--or us, if we are still here----\r\n Mr. Issa. I appreciate the gentleman from New York. And I \r\nwould reclaim and yield the balance of my time to the gentleman \r\nfrom Texas.\r\n Mr. Smith. I thank the gentleman from California for \r\nyielding.\r\n Mr. Chairman, I, too, oppose this amendment, which applies \r\nto all 16 of the sunsetted provisions of the PATRIOT Act. The \r\nPATRIOT Act was a long overdue measure aimed at first closing \r\ngaping holes in the Government's ability to collect vital \r\nintelligence information on the global terrorist network, and \r\nsecond, protecting Americans from another attack. It was \r\nsupported overwhelmingly by the American people and passed by a \r\nmargin of 98-1 in the Senate and 347-66 in the House.\r\n Even the ACLU said, in a recent press release, that ``most \r\nof the voluminous PATRIOT Act is actually unobjectionable from \r\na civil liberties point of view'' and that ``the law makes \r\nimportant changes that give law enforcement agents the tools \r\nthey need to protect against terrorist attacks.''\r\n In order to make sure that we did not overreact to the \r\nSeptember 11 murder of over 3,000 innocent Americans by \r\nenacting legislation that went too far, we placed sunsets on \r\nsome PATRIOT Act provisions. Nearly 4 years later, successes in \r\nterrorist investigations show not only that the PATRIOT Act was \r\nthe right way to go, but also that the sunsets were not \r\nnecessary. There has not been even one substantiated abuse of \r\npower under the PATRIOT Act, but there have been terrorist \r\nprosecutions. The sunsets should not be reinstated across the \r\nboard.\r\n The information sharing powers created by Section 218, for \r\nexample, which would be sunsetted again by this amendment, were \r\ninstrumental in disrupting terrorist cells in New York, Oregon, \r\nFlorida, and Virginia, and in prosecuting a number of \r\nindividuals tied to terrorist organizations.\r\n The Section 212 power to authorize electronic \r\ncommunications service providers to disclose records to the \r\nGovernment if there is the threat of death or serious injury, \r\nwhich would be sunsetted again under this amendment, allowed \r\ninvestigators to prevent the bombing of a high school and \r\nallowed investigators in Texas to apprehend an individual who \r\nthreatened to attack a mosque.\r\n This amendment would have a chilling effect on current and \r\nfuture investigations because of the uncertainty a sunset \r\nplaces on the direction of an investigation. If investigators \r\nbelieve that they may no longer have the ability to share \r\ninformation, obtain roving wiretaps, or obtain certain business \r\nrecords, they may hesitate to pursue the investigation.\r\n Mr. Chairman, sunsets may have had a proper place when they \r\nwere enacted at the beginning of this landmark legislation in \r\nthe aftermath of September 11th, but since then the \r\neffectiveness of the PATRIOT Act has been proved many times \r\nover. There should be no sunsetting of all these provisions or \r\nany sunsetting of our willingness or ability to keep America \r\nsafe.\r\n I yield back the balance of my time.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n The question is on----\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Scott. Mr. Chairman, I agree that most of the, or at \r\nleast a lot of the PATRIOT Act is in fact good law. In fact, \r\nthis Committee reported a version of the PATRIOT Act \r\nunanimously. And so we felt that a lot of it could have been \r\npassed without a lot of controversy. People have said that it \r\nhas worked okay. There have been misclassifications of \r\nterrorism cases and there have been problems, so when the \r\nsuggestion is made that there are no problems, I don't want \r\nthat comment to go without controversy. We have seen, because \r\nwe have had the sunsets, we have had much better cooperation \r\nfrom the administration because of the sunsets. The Chairman \r\nhas indicated that we had to threaten a subpoena to get the \r\ncooperation, at least on some issues, from the Attorney \r\nGeneral.\r\n And I would hope that we would adopt this. I think 10 years \r\nis too long, but we have already had that debate. So long as we \r\nfind on reauthorization, when it comes up for reauthorization, \r\nthat it is worked, there won't be any problem reauthorizing it. \r\nIt just ensures it will have oversight. So I would hope that we \r\nwould adopt the amendment, and I yield----\r\n Mr. Conyers. Would the gentleman from Virginia yield?\r\n Mr. Scott. I will yield.\r\n Mr. Conyers. Well, I want to agree with you, because the \r\noriginal PATRIOT Act that was unanimously voted out had 2-year \r\nsunset provisions. Two years, not four, and certainly not 10. \r\nAnd so I would like to remind the Committee that our collective \r\nwork product was far more carefully tailored than now.\r\n And I couldn't agree with you more. You know, a member \r\nmaking a statement that there are no PATRIOT Act violations \r\ndoes not, unfortunately, turn it into gospel. That is just one \r\nperson's view. We are putting together a paper here that shows \r\nthat there were dozens and dozens of violations that have come \r\nto our attention, and probably others that we haven't found out \r\nabout yet.\r\n Mr. Scott. Thank you very much. And reclaiming my time, I \r\nyield to the gentleman from New York.\r\n Mr. Nadler. Thank you. I thank the gentleman for yielding.\r\n I just want to add that, you know, as was said a moment \r\nago, much of the Patriot--and the ACLU said much of the PATRIOT \r\nAct is unobjectionable and is fine and uncontroversial and no \r\none objects to it. But parts of the PATRIOT Act, especially the \r\nparts that were sunsetted, get very expanded and perhaps, in \r\nsome hands and in some times and in some places, dangerous \r\npowers to police authorities. They may not have been misused; \r\nthey may have been misused. Who knows in the future? They may \r\nbe very necessary in the war on terrorism for now, maybe for \r\nthe future. But the one thing that sunsetting says is that we \r\nshould not get too comfortable with expanded police powers in \r\nthis country. We should be nervous about expanded police powers \r\nin this country, because they threaten liberty. They may be \r\nnecessary in an age of terrorism, but we should be nervous \r\nabout them, we should be grudging about them, and we should \r\nreview them. And all the sunset provision says is review those \r\nexpanded police powers in 10 years. It is worth the extra time \r\nfor this Committee to protect liberty.\r\n Thank you. I yield back.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman from New York, Mr. Nadler, and the \r\ngentlewoman from California, Ms. Lofgren.\r\n Those in favor will say aye? Opposed, no?\r\n The noes appear to have it. The noes have it, and the \r\namendment is not agreed to.\r\n Are there further amendments?\r\n Mr. Nadler. rollcall.\r\n Chairman Sensenbrenner. The gentleman from New York asks \r\nfor a rollcall. Those in favor of the Nadler-Lofgren amendment \r\nwill, as your names are called, answer aye; those opposed, no. \r\nAnd the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n [No response.]\r\n The Clerk. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n [No response.]\r\n The Clerk. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? The gentleman from Ohio, Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nBoucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 12 ayes and 21 noes.\r\n Chairman Sensenbrenner. The amendment is not agreed to.\r\n Are there further amendments? The gentleman from Maryland, \r\nMr. Van Hollen.\r\n Mr. Van Hollen. Thank you, Mr. Chairman. I have an \r\namendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Van \r\nHollen and Mr. Conyers. At the end of the bill, add the \r\nfollowing: Section ___. Knowing transfer of firearm to \r\nindividual named in the Violent Gang and Terrorist Organization \r\nFile treated as providing material support to terrorists.\r\n Mr. Van Hollen. Mr. Chairman, I ask unanimous consent that \r\nfurther reading of the amendment be dispensed with.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Mr. Van Hollen and Mr. Conyers follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman from Maryland is \r\nrecognized for 5 minutes.\r\n Mr. Van Hollen. Thank you, Mr. Chairman. I am pleased to \r\noffer this amendment together with Mr. Conyers.\r\n There is an existing provision in the PATRIOT Act entitled \r\n``Providing Material Support to Terrorists,'' which does \r\nsomething I think we all agree needs to be done, which says \r\nsimply that if you are somebody who is providing aid and \r\ncomfort and providing material support to somebody conducting a \r\nterrorist act, then you, too, should be held accountable.\r\n What this amendment does, very simply, it says that if you \r\nknowingly--and I want to stress this is not if you have reason \r\nto know, this is not if you speculate, that you might know--\r\nthis is if you know that somebody is on the terrorist watch \r\nlist and you provide that individual with firearms, like a \r\nsemiautomatic weapon or other controlled weapons, that you can \r\nbe held responsible for that action. And it seems to me that if \r\nwe want to address the roots of the problem as we have in the \r\nexisting bill, where we say that someone who provides material \r\nsupport to a terrorist will also be held accountable and \r\nresponsible, it makes sense that if we know that somebody is on \r\nthe terrorist watch list and you go out and sell them, you \r\nknow, 12 AK47s, that you also should be held responsible under \r\nthis provision providing material support to terrorists.\r\n So I urge my colleagues on both sides of the aisle to adopt \r\nthis amendment, and I yield to Mr. Conyers.\r\n Mr. Conyers. I thank my colleague for joining with me, and \r\nme joining with him, in this amendment. Terrorists' access to \r\nguns. What could be more relevant in a PATRIOT Act \r\nreauthorization? We are not talking about weapons of mass \r\ndestruction, we are talking about guns, period, in the hands of \r\nany terrorist is a danger to Americans, particularly inside the \r\nUnited States.\r\n And so what we are trying to do with Van Hollen-Conyers is \r\nto close an alarming loophole that allows suspected and actual \r\nmembers of terrorist organizations to legally purchase guns. I \r\nwill not repeat that sentence because it speaks for itself.\r\n A GAO report: 56 firearm purchase attempts were made by \r\nindividuals designated as known or suspected terrorists by the \r\nFederal Government. Forty-seven of these cases, transactions of \r\nsale were permitted to proceed because officials couldn't find \r\nany disqualifying information such as a felony conviction or \r\ncourt-determined mental defectiveness in the individual \r\napplicant's background.\r\n So under the law as it stands without this amendment, even \r\nin the PATRIOT Act neither suspected or actual membership in a \r\nterrorist organization is a sufficient ground in and of itself \r\nto prevent such a purchase from taking place. I think this \r\nCommittee is not about to let a PATRIOT Act reauthorization \r\ncome out knowing that this is the case and that we must act.\r\n I deliberately did not mention assault weapons because they \r\nare going to come up in a special amendment. So, my colleagues, \r\nplease join us so that we can really wage the best war that we \r\ncan against terrorists in the United States by keeping domestic \r\nguns out of their hands for those who know who they are selling \r\nthem to. Again, as the gentleman from Maryland indicated, this \r\nturns on knowledge and intent, and I think that it is the least \r\nthat we can do on a bill such as this.\r\n I return the time back to my colleague, if he chooses to \r\nuse it.\r\n Mr. Van Hollen. Well, I thank my colleague. I think the \r\npoint has been made here. And I do want to stress that this is \r\nwhere you are knowingly transferring, where an individual \r\nknowingly transfers firearms to somebody who is on the \r\nterrorist watch list. It seems to fit very well into the \r\nprovision that already exists with respect to providing \r\nmaterial support to terrorists. And I urge my colleagues to \r\nadopt the amendment.\r\n Mr. King. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.\r\n Mr. King. Mr. Chairman, I wish to be recognized to speak in \r\nopposition.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. Thank you, Mr. Chairman. And although I agree \r\nwith the sentiment in this amendment, and all of us want to \r\ntake all weapons out of the hands of terrorists, I would seek \r\nto answer the question that was asked by the Ranking Member \r\nfrom Michigan, Mr. Conyers, although it may have been \r\nrhetorical, what could be more relevant than taking guns out of \r\nthe hands of terrorists; I would submit taking bombs out of the \r\nhands of terrorists would be more relevant, given the \r\ncircumstances that we have seen in the history of terrorism.\r\n But it is not my particular concern. I would like to find a \r\nway, too, that we could verify that the terrorists are on the \r\nwatch list for a reason. But in fact, we can't know if they are \r\non the list or not because it is a classified list. And so I \r\nunderstand the amendment says ``knowingly'' the name appears on \r\nthe file. I don't know how an individual that might be \r\nproviding that gun would know that they were on the list, since \r\nit is classified.\r\n And then the second point is that there is a list, though, \r\nand that list is the list of those who are disabled of their \r\nfirearms rights. And it is a list that has been determined to \r\nbe consistent with the Second Amendment of our Constitution. \r\nAnd those conditions are, people who have been adjudicated in \r\none form or another for having a legitimate reason to have \r\ntheir Second Amendment gun rights denied, these would be people \r\nwho have committed a felony, people who are a fugitive from \r\njustice, addicted to a controlled substance, or adjudicated \r\nmentally defective or an illegal alien, or dishonorably \r\ndischarged from the military, or having renounced their U.S. \r\ncitizenship or be subject to a restraining order, or being \r\nconvicted of a crime of domestic violence. We make sure that \r\nwhen people are denied their constitutional rights to keep and \r\nown firearms that they have a process by which they go on the \r\nlist where they are denied, they have an opportunity to appeal \r\nthat, an opportunity for their case to be heard. And in this \r\ncase, not only do they not have an opportunity to be on the \r\nterrorist watch list, they may not know that they are on the \r\nwatch list. And if they might hear a rumor that they are, for \r\nexample, be denied boarding an airplane, which has happened to \r\nsome of our colleagues, then they only suspect that they are \r\non; it might confirm they are on, but they may not know why.\r\n So I think that even though the intent of this amendment is \r\na good one, to take the weapons out of the hands of terrorists, \r\nit reaches beyond a point where we have constitutionally ever \r\nreached before with regard to their restraint on access to guns \r\nunder the Second Amendment. So the language and the intent is \r\ngood, but the effect on our Second Amendment of the \r\nConstitution, I believe, is----\r\n Mr. Conyers. Would the gentleman from Iowa yield to me \r\nbriefly?\r\n Mr. King. I would be happy to, Mr. Conyers.\r\n Mr. Conyers. Thank you very much.\r\n What I have heard you say is that terrorists have a \r\nconstitutional right to weapons, a protected constitutional \r\nright----\r\n Mr. King. Reclaiming my time.\r\n Mr. Conyers. Right?\r\n Mr. King. Of course not. And in fact these people are not \r\nadjudicated as terrorists. You said yourself that they were \r\nknown or suspected to be on the terrorist watch list, those 56 \r\npeople that applied. I don't think that you stated before this \r\nCommittee that they were all on the terrorist watch list, \r\nbecause that would have been at least acknowledging an \r\nunderstanding of what was on the classified list itself.\r\n So I would conclude by urging a No vote and I would yield \r\nback my time.\r\n Mr. Van Hollen. Would the gentleman yield on that point?\r\n Mr. King. I have yielded back.\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. Thank you very much.\r\n Mr. Chairman and members, this amendment appears to be the \r\nmost reasonable, well thought-out amendment going directly to \r\nthe heart of protecting us from terrorists or people who would \r\ndo us harm. And yet, I am absolutely amazed that the gentleman \r\non the opposite side of the aisle who just spoke is concerned \r\nabout protecting the rights of suspected terrorists.\r\n It seems to me we have sat here and we have listened to \r\nsome of the same voices talk about how we can obtain private \r\nmedical records, how we could place people under investigation \r\nwithout judicial review, how we can have access to e-mails, and \r\nsurveillance of all kinds, invading the rights of folks who you \r\ndon't even have to show probable cause. And here we have an \r\nobjection to trying to keep guns out of the hands of suspected \r\nterrorists.\r\n I don't understand it. It doesn't make good sense to me. \r\nAnd for those who would paint themselves as being concerned \r\nabout how we secure this country, how we secure the homeland, \r\nhow we really deal with this problem of terrorism, given that \r\nthere is some information that would lead a reasonable person \r\nto believe that this person could be a terrorist, and you don't \r\nwant to keep firearms out of their hands, I don't understand \r\nit. And we certainly must have a recorded vote on this. And I \r\nyield----\r\n Mr. Conyers. Would the gentlelady yield?\r\n Ms. Waters. I yield to the gentleman from New York.\r\n Mr. Weiner. Thank you. What I found interesting in the \r\nopposition from one of the members on the other side is that \r\nthe objective was right and the language was right, but there \r\nwas some concern about his interpretation of, perhaps, that \r\nthis would be problematic to the Second Amendment.\r\n I just want to reiterate that the Van Hollen-Conyers \r\namendment says that the person would only be in trouble under \r\nthis section if they knowingly sold to someone who appeared on \r\nthe list. So it is not as if he gets to guess or they have to \r\ndo intelligence. They just have to know. I mean, if the intent \r\nwas fine of the bill, well, that is at least a step in the \r\nright direction. If the language was acknowledged to being \r\nright, then the only problem is that the reading of it must be \r\nfaulty.\r\n Mr. King. Would the gentleman yield?\r\n Ms. Weiner. I don't control the time, but I certainly hope \r\nthat the gentlelady will because I am dying to know what is it \r\nthat you think is not good about it if you like the intent and \r\nthe language? And I will yield back.\r\n Ms. Waters. I yield to the gentleman from Michigan.\r\n Mr. King. I thank the gentle----\r\n Mr. Conyers. I just want to----\r\n Chairman Sensenbrenner. She didn't yield to you.\r\n Mr. Conyers. I just want to point out what is left for us \r\nto do in this bill reauthorizing a PATRIOT Act and allowing \r\npeople to knowingly sell to terrorists or suspected terrorists. \r\nThen that makes everything else we do secondary. We just opened \r\nthe barn door. I can't figure out why we should stay around \r\nhere for another day or so and mull over dozens of other very \r\nworthwhile amendments when we have already agreed that the \r\nconstitutional rights of terrorists are protected by the Second \r\nAmendment to the Constitution--a proposition I have never heard \r\nin all of my years on the Judiciary Committee.\r\n Ms. Waters. Reclaiming my time, I am going to yield because \r\nI am so anxious to get to the vote on this. I think it is very \r\nimportant that we have a recorded vote. I yield back the \r\nbalance of my time.\r\n Mr. Lungren. Mr. Chairman?\r\n Chairman Sensenbrenner. The question----\r\n Mr. Lungren. Mr. Chairman? Over here.\r\n Chairman Sensenbrenner. The gentleman from California did \r\nnot hear the gentlewoman from California's request to go to a \r\nvote quickly?\r\n Mr. Lungren. Yes, I did, but there are some remarks on the \r\nrecord that I----\r\n Chairman Sensenbrenner. Well, then, the gentleman is \r\nrecognized for 5 minutes.\r\n Mr. Lungren. Strike the last word in opposition to the \r\namendment.\r\n I mean, we know this is serious business. When I was \r\nattorney general, I set up a violence suppression unit that did \r\nnothing but go and take guns off the street from those who were \r\nconvicted felons, those who were violent offenders. We took \r\nliterally thousands off the street. We put people away for long \r\nperiods of time. We had to deal with the gang issue. And one of \r\nthe constitutional issues that comes up with lists of gangs is \r\nwho has access to those lists, because on your gang list you \r\noften have people who are affiliated with gangs but don't have \r\na criminal history. You can't mix them into criminal history \r\nrecords precisely because they are different categories. Some \r\nlaw enforcement have access to them, others do not.\r\n It is my understanding--and someone can correct if I am \r\nwrong--it is my understanding that the Violent Gang and \r\nTerrorist Organization File maintained by the Attorney General \r\nis classified. Now, if that is the case, what we are doing here \r\nis trying to fool people with an amendment that seems to do \r\nsomething. If it is a classified list, how can anybody who \r\ndoesn't have a classified clearance be able to see it?\r\n And so what we are talking about here is a feel-good \r\namendment that doesn't go to the question of dealing with \r\nterrorists or gang members. And I know it makes people feel \r\ngood to talk about some sort of list that answers the \r\nquestions, but having gone through this in one of my past lives \r\nand knowing that you have different categories of information \r\non different lists, access to which is granted to only certain \r\npeople under certain standards----\r\n Ms. Waters. Would the gentleman yield?\r\n Mr. Lungren. Yes, I would be happy to yield.\r\n Ms. Waters. Two questions I see. First, I don't believe it \r\nis classified. But if we assume that it is, the amendment \r\nitself would apply only if the individual knew that the person \r\nwas on that list. So----\r\n Mr. Lungren. And there be no reason of knowing unless they \r\nhad a classified----\r\n Ms. Waters. That is not true. If they knew, if they knew \r\nand sold it anyhow, that is the only time this would apply. So \r\nthe gentleman's objection, even though I don't think it is \r\nclassified, would not actually cause a problem.\r\n And I thank the gentleman for yielding.\r\n Mr. Lungren. Well, the other thing is, if this list is what \r\nI think it is, at certain moments in time you have people who \r\nare not members of a terrorist group or members of a gang, but \r\nhave been put on there because of a suspicion that they may be. \r\nAnd that is one of the reasons that you don't allow access to \r\nsome of these lists. I am just talking about from the \r\nstandpoint of lists I know with respect to gang----\r\n Mr. Weiner. Would the gentleman yield on that point?\r\n Mr. Lungren. You have to be very careful about designating \r\npeople as gang individuals and putting that out somewhere. And \r\nthere have been carefully drawn limitations on who gets access \r\nto it and who doesn't.\r\n Mr. Weiner. Would the gentleman yield?\r\n Mr. Lungren. I mean, this is an interesting discussion, \r\nbut----\r\n Mr. Weiner. Would the gentleman yield on that point?\r\n Mr. Lungren. Yes, sure.\r\n Mr. Weiner. I am just curious. If the United States \r\nGovernment and the agencies in charge of making sure that \r\npeople who are terrorists don't get onto planes, don't get \r\naccess to secure places, if a person is on that list, isn't \r\nthat--and someone knows they are on that list and sells them a \r\nweapon anyway, isn't that kind of a kind of precaution we might \r\nwant to maybe possibly have? What is the harm? What is the harm \r\nthat you see in saying that if someone knowing knows they are \r\non that list, a list, by the way, that we rely upon for much \r\ntougher sanctions than this bill, what is the harm of saying if \r\nsomeone knowingly sells to someone----\r\n Mr. Lungren. Well, I will take back my time, because what \r\nwe are doing here is silly. Because you know the people don't \r\nhave that information. This is the reason why we decide that we \r\ndon't give airlines the list. We give them--they are allowed to \r\nmake queries into the list to find out if people are there. \r\nThey don't know why people are on or not on. It is one of the \r\nreasons we try and make a delineation between law enforcement \r\npeople who have had an opportunity to be cleared to know this \r\ninformation, and others.\r\n So if you want to, you know, vote for the bill, or vote----\r\n Ms. Waters. Will the gentleman yield?\r\n Mr. Lungren.--means something, you can. But the fact of the \r\nmatter is it means absolutely nothing.\r\n Ms. Waters. What if Karl Rove leaked the information?\r\n Mr. King. Will the gentleman yield?\r\n Mr. Lungren. I will yield whatever time I have.\r\n Mr. King. I thank the gentleman from California. And I \r\nwould point out there is a distinction here, and that is the \r\nlist that I read, the nine classifications of those who have \r\nbeen disabled of their constitutional rights, all the people \r\nwho have been adjudicated, the list we are talking about in \r\nthis amendment, though well-intentioned, is a list that \r\nincludes those people who are under suspicion, not those who \r\nare adjudicated. And that is a real violation of the same kind \r\nof things that you are trying to avoid in many of your other \r\namendments.\r\n And I would yield back. Thank you.\r\n Mr. Watt. Mr. Chairman?\r\n Chairman Sensenbrenner. For what purpose does the gentleman \r\nfrom North Carolina, Mr. Watt, seek recognition?\r\n Mr. Watt. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Watt. Mr. Chairman, I had to step out and I walked back \r\nin to what appears to me to be a surreal discussion. I want to \r\naddress one aspect of it. I mean, I thought that one of the \r\nreal problems we had with the PATRIOT Act across the board was \r\nthe extent to which it treads on constitutional rights. And Mr. \r\nKing's argument about the Second Amendment is the one that I \r\njust couldn't quite come to grips with. He seemed to be \r\nsuggesting that he couldn't support this amendment because it \r\nwould tread on the Second Amendment to the Constitution of the \r\nUnited States.\r\n I did want to remind him of the provisions in the Sixth \r\nAmendment to the Constitution of the United States, which \r\nprovides that accused shall enjoy the right to a speedy and \r\npublic trial by an impartial jury of the State and district in \r\nwhich the crime shall have been committed, which district shall \r\nhave been previously ascertained by law; and be informed of the \r\nnature and cause of the accusation, to be confronted with the \r\nwitnesses against him, to have compulsory process for obtaining \r\nwitnesses in his favor, and to have the assistance of counsel \r\nfor his defense.\r\n If the marginal--even if you assume that the Second \r\nAmendment says what you believe that it says, I can't imagine \r\nthat you think that what we have done is more an impediment on \r\nthe Second Amendment than it is on this amendment. I mean, we \r\nhave people locked up, no charges brought against them, no \r\nright to counsel, no--I mean, you know. So I thought we all had \r\naccepted that there was going to be some infringement. That is \r\nwhy we had such a long debate about the sunset provisions, \r\nbecause, you know, at least you could go back and review the \r\nextent to which this is happening and get us back at some point \r\nto a balance that protects our constitutional rights. But you \r\ncan't with integrity argue that you can protect only the Second \r\nAmendment, unless you are going to argue just as vigorously and \r\nvehemently that you are going to protect the other \r\nconstitutional protections here.\r\n So, I mean, I--now, I don't have any problem with you \r\nstanding up for the Second Amendment. I mean, you know, I just \r\nwant you to make it a little bit broader than the Second \r\nAmendment.\r\n Mr. Schiff. Will the gentleman yield?\r\n Mr. Watt. There is a whole bunch of provisions in the \r\nConstitution that we are treading and shredding--hopefully, \r\ntemporarily. I just wanted to point that out. I will yield to \r\nthe gentleman from California.\r\n Mr. Schiff. I thank the gentleman for yielding. I just \r\nwanted to make a quick related point, and that is that a lot of \r\nthe provisions of the Patriot bill that we are discussing today \r\ninvolve the Fourth Amendment right to be free from unreasonable \r\nsearches and seizures. And in all the cases that we are talking \r\nabout, about surveillance under FISA or other provisions, we \r\nare talking about people who are suspects. None of these people \r\nare adjudicated felons. We are all talking about suspects, and \r\nin some cases, with standards less than probable cause.\r\n Now, here, yes, we are talking about people who are \r\nsuspects, although I guess you could have people who are \r\nconvicted also that are part of the Violent Gang and Terrorist \r\nOrganization File. But yes, we are talking about suspects and \r\ntheir rights under the Fourth Amendment and suspects and their \r\nrights under the Second Amendment. And I find it, you know, \r\nvery incongruous that we are saying that the Fourth Amendment \r\nrights we are willing to----\r\n Mr. Watt. Fudge.\r\n Mr. Schiff. Well, I wouldn't use the word ``fudge,'' but, \r\nyou know, we are willing to push the envelope on the Fourth \r\nAmendment vis-a-vis these suspect, but when it comes to the \r\nsacrosanct Second Amendment, and we are talking about knowingly \r\ngiving a firearm to somebody who is a potential terrorist, that \r\nthat is okay because they are only potentially terrorists. But \r\nwe can surveill potential terrorists; we just can't take their \r\ngun away.\r\n That seems to me an extraordinary result, that we can go up \r\non a wiretap of a potential terrorist, but we can't stop \r\nsomeone from knowingly giving guns to a potential terrorist. \r\nAnd I don't know why the Fourth Amendment, apart from reasons \r\nthat are unspoken here in Committee but plain to everyone in \r\nthis Committee, I don't know why the Second Amendment is \r\ngetting so much more vigilant protection here than the Fourth \r\nor, as my colleague mentions, the Sixth.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n The question is on the Van Hollen amendment. Those in favor \r\nwill say aye? Opposed, no?\r\n The noes appear to have it.\r\n Mr. Conyers. Record vote, sir.\r\n Chairman Sensenbrenner. A record vote will be ordered. \r\nThose in favor of the Van Hollen amendment will, as your names \r\nare called, answer aye; those opposed, no. And the clerk will \r\ncall the role.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? The gentleman from California, Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nBoucher?\r\n Mr. Boucher. No.\r\n The Clerk. Mr. Boucher, no.\r\n Chairman Sensenbrenner. If there are no further members who \r\nwish to cast or change their vote, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 15 ayes and 22 noes.\r\n Chairman Sensenbrenner. The amendment is not agreed to.\r\n Are there further amendments? The gentleman from \r\nCalifornia, Mr. Berman.\r\n Mr. Berman. Mr. Chairman, I have an amendment at the desk, \r\nBerman and Delahunt, on data mining report.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Berman \r\nand Mr. Delahunt. At the appropriate place in the bill, insert \r\nthe following: Section ___. Data mining report. (a) \r\nDefinitions. In this section----\r\n [The amendment of Mr. Berman and Mr. Delahunt follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Berman. Mr. Chairman, I ask unanimous consent the \r\namendment be considered as read.\r\n Chairman Sensenbrenner. The gentleman from Texas reserves a \r\npoint of order. Without objection, the amendment is considered \r\nas read. Subject to the reservation, the gentleman from \r\nCalifornia is recognized for 5 minutes.\r\n Mr. Berman. Thank you very much, Mr. Chairman.\r\n This amendment that Mr. Delahunt and I are offering would \r\nrequire the departments and agencies of the Federal Government \r\nto report to Congress on the development and implementation of \r\ndata mining technologies.\r\n When Mr. Delahunt offered this amendment on behalf of both \r\nof us during the intelligence reform markup of this Committee, \r\nit was accepted by a voice vote. The General Accounting Office \r\nissued a report in May 2004 that identified almost 200 data \r\nmining projects throughout the Federal Government that were \r\neither operational or in the planning stages. Many of them make \r\nuse of personally identifiable data obtained by private sector \r\ndatabases.\r\n Two concerns lead us to this amendment. The first is that \r\nAmericans rightly have privacy concerns about these data mining \r\ntechnologies, particularly when we hear that there are 200 of \r\nthem in the works. When the Total Information Awareness Program \r\ncame to light, there was tremendous public concern about the \r\nextent of the project.\r\n Congress ought to know about these programs not just as \r\nthey are being put into place, but as they are being developed, \r\nso that we can ensure that privacy concerns are taken into \r\naccount.\r\n The second reason for the amendment is that the budget for \r\nthe Total Information Awareness Program in the Defense budget \r\nalone in 2004 was $169 million. The Defense appropriations bill \r\ncut all of that funding. These technologies are not free. They \r\nare expensive to develop and run. When Congress is unaware of \r\ntheir development and steps in only at the implementation to \r\ncut funding, taxpayer dollars are wasted.\r\n Law enforcement must have the necessary means to protect \r\nour safety, but the use of data mining technologies should not \r\nbe allowed to put Americans' privacy at risk. By implementing a \r\nreporting requirement, we can ensure that Congress knows in \r\nadvance of implementation and is able to respond appropriately.\r\n I know that there is a question about the germaneness of \r\nthis amendment, and I know that when it was adopted last time, \r\nthere were problems in sequential referrals because we seek to \r\nget reports on data mining in a number of different agencies, \r\nnot just agencies that the Judiciary Committee has oversight \r\non. At the appropriate time----\r\n Chairman Sensenbrenner. Will the gentleman yield?\r\n Mr. Berman. I would be happy to yield.\r\n Chairman Sensenbrenner. The gentleman from California and \r\nother members of the Committee know that the chair has been \r\nvery concerned about data mining in an unchecked and \r\nunreportable manner by agencies of the Executive Department. \r\nNow, when the original PATRIOT Act was first considered, the \r\nfinal version of the PATRIOT Act did have provisions checking \r\ndata mining activity by the Justice Department.\r\n I believe that the concern of the gentleman from California \r\nis a very well-founded one. And while I don't think that the \r\namendment he is offering is germane under the rules of the \r\nHouse, I do think that he is talking about a legitimate subject \r\nthat should be legislated on sometime further on in the \r\nlegislative process, either in this bill or in subsequent \r\nlegislation. And I will give my commitment to the gentleman \r\nfrom California to work with him on this subject, because I \r\nbelieve that he has spotted something that does need to be \r\naddressed.\r\n Mr. Berman. Thank you very much. Reclaiming my time, I \r\nthank the Chairman very much both for his comments and for his \r\ncommitment. And before I withdraw the amendment, I would like \r\nto yield to my cosponsor, Mr. Delahunt.\r\n Mr. Delahunt. I won't take any time. I just appreciate the \r\noffer by the chair. I think this is an issue, however, that has \r\nreally raised concerns on a broad swath among the American \r\npeople in terms of privacy interests and something that really \r\ncompels us to address. And I am hopeful that before the \r\nlegislation we are considering today comes to the floor, that \r\nwe will be able to work out, in an appropriate fashion, \r\nlanguage so that it could be incorporated in that legislation.\r\n With that, I yield back.\r\n Mr. Berman. I yield back.\r\n Chairman Sensenbrenner. Does the gentleman withdraw his \r\namendment?\r\n Mr. Berman. I do.\r\n Chairman Sensenbrenner. The amendment is withdrawn. The \r\npoint of order is thus moot.\r\n For what purpose does the gentleman from California, Mr. \r\nSchiff, seek recognition?\r\n Mr. Schiff. Thank you, Mr. Chairman. I have an amendment at \r\nthe desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Nine, offered by Mr. Schiff and Ms. Waters. Add \r\nat the end of Section 8, page 9, after line 11, the following \r\nnew Subsection E: Prohibition on delegation of application for \r\norder of production of records from library or bookstore or \r\nmedical records containing personally identifiable information. \r\nSubsection A of such Section is amended----\r\n Mr. Schiff. Mr. Chairman, I'd ask consent that the \r\namendment be deemed as read.\r\n Chairman Sensenbrenner. Without objection, and the \r\ngentleman is recognized for 5 minutes.\r\n [The amendment of Mr. Schiff and Ms. Waters follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Schiff. Thank you, Mr. Chairman. I'll try to do this in \r\nless than five.\r\n This is a very simple amendment to Section 215 that says \r\nthat vis a vis the records that have the most concerns among \r\nall of our constituents--library records, or bookstore records, \r\nor medical records--that the existing authority in Section 215, \r\nwhich allows the Director of the FBI to delegate to a \r\nsubordinate the decision to seek these records he would not be \r\nable to delegate. That is that in the limited case of \r\nlibraries, bookstores, and medical records that you could still \r\nget them under Section 215, but they'd have to be approved by \r\nthe Director of the FBI himself or herself.\r\n I imagine, listening to my colleagues on the other side of \r\nthe aisle that--and in particular as far as the Attorney \r\nGeneral has certified--the library provision has never been \r\nused, at least as of the last public disclosure. So it would be \r\nvery seldom that I would hope that a library or bookstore or \r\nmedical record would be sought, and I don't think this would \r\nimpose an undue burden on the Director of the FBI, and given \r\nthe sensitivity of this, I think it makes sense for the FBI \r\nDirector and the Director alone to make that decision, not \r\ndelegate it away.\r\n The fact that the library record provision may or may not \r\nhave been used at this point doesn't alter the fact that it \r\naffects the behavior of all of our constituents, who are \r\nconcerned that their records might be the subject of search. So \r\nI think this added protection is warranted. It won't inhibit \r\nwhat the FBI does, but it will add another layer of safeguard, \r\nand I would urge my colleagues' support.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Schiff. Yes. I'd be happy to.\r\n Ms. Lofgren. I will support the gentleman's amendment, but \r\nI would note, and I guess this is really a question that this \r\nis actually a more conservative approach than the House itself \r\ntook in the amendment to the appropriations that essentially \r\nprevailed--Mr. Sanders' amendments several weeks ago. Isn't \r\nthat correct?\r\n Mr. Schiff. Yes, it is. I mean this doesn't exclude the \r\nability to get these records, but it says in this narrow \r\ncategory of the most sensitive information, it's a decision \r\nthat the Director of the FBI should not be able to delegate to \r\na field agent or a subordinate, but should be made at the top.\r\n Ms. Lofgren. If the gentleman will further yield. I will \r\nsupport the amendment. I actually prefer what the House voted \r\non, and I suspect the gentleman may as well. But certainly, \r\nwhat you've recommended is an improvement over the laws that \r\nexist today, and I thank the gentleman for yielding.\r\n Mr. Schiff. I thank the gentlewoman, and I'd be prepared to \r\nyield back the balance of my time.\r\n Chairman Sensenbrenner. The Chair recognizes himself for 5 \r\nminutes in opposition to the amendment.\r\n The Chair realizes that there have been problems so with \r\nthe interpretation of Section 215 and that a clarification of \r\nprocedures and standards are in order.\r\n The Flake Amendment that was adopted this morning does \r\nprovide a partial clarification. The actual line of authority \r\nissue that the gentleman from California Mr. Schiff's amendment \r\ndeals with is at the present time being worked out, and will be \r\nthe subject of a floor amendment when we get there next week.\r\n I would be willing to offer to work with the gentleman from \r\nCalifornia, Mr. Schiff, and the gentlewoman from California, \r\nMs. Waters, to work out language should they withdraw their \r\namendment at this time.\r\n But if they won't withdraw the amendment at this time, then \r\nI would urge the members to vote against it.\r\n I yield back the balance of my time.\r\n Mr. Schiff. Yeah. Mr. Chairman, I appreciate the offer to \r\nwork together, and I would, given the likelihood of success in \r\nCommittee, accept the Chairman's invitation to work together on \r\nlanguage for the floor.\r\n Chairman Sensenbrenner. The amendment is withdrawn. Are \r\nthere----\r\n Mr. Schiff. Mr. Chairman, since I have withdrawn that, may \r\nI offer another?\r\n Chairman Sensenbrenner. Of course. The clerk will report \r\nthe amendment.\r\n Does the gentleman from----\r\n Mr. Schiff. It's being provided to the desk, Mr. Chairman.\r\n Chairman Sensenbrenner. Does the clerk have a Schiff \r\nAmendment?\r\n Mr. Schiff. My staff is bringing it to the desk right now, \r\nMr. Chairman.\r\n Chairman Sensenbrenner. Perhaps--the Chair will recognize \r\nanother member for offering an amendment and get back to Mr. \r\nSchiff. The gentleman from New York. Excuse me, the gentleman \r\nfrom Florida, Mr. Wexler, has had little to say today. For what \r\npurpose do you seek recognition?\r\n Mr. Wexler. It's a compliment for me to be from New York, \r\nMr. Chairman. Others may not feel that way, but I do.\r\n Chairman Sensenbrenner. Does the gentleman from Florida \r\nhave an amendment at the desk?\r\n Mr. Wexler. Yes, I do.\r\n Chairman Sensenbrenner. The clerk will report the Wexler \r\nAmendment.\r\n The Clerk. Mr. Chairman, I do not have a Wexler Amendment.\r\n Chairman Sensenbrenner. Okay. I will now try the gentleman \r\nfrom New York, Mr. Weiner.\r\n Do you have an amendment at the desk?\r\n Mr. Weiner. Thank you, Mr. Chairman. Mr. Chairman, no.\r\n Chairman Sensenbrenner. The clerk will report the Wexler \r\nAmendment.\r\n Mr. Wexler. Thank you, Mr. Chairman.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Wexler of \r\nFlorida. At the end of the bill add the following section \r\npreventing the revelation of information pertaining to active \r\nintelligence agents.\r\n Mr. Wexler. Mr. Chairman, I move that the----\r\n The Clerk. Section 2239----\r\n Chairman Sensenbrenner. Reserve the point of order.\r\n The Clerk. A of Title 18 United States Code is amended by \r\ninserting reveals any information pertaining to the identity of \r\nundercover intelligence officers, agents, informants, and \r\nsources that the person has or should----\r\n Mr. Wexler. Mr. Chairman, I move the amendment be \r\nconsidered as read.\r\n Mr. Smith. Mr. Chair, I reserve a point of order.\r\n Chairman Sensenbrenner. The gentleman from Texas reserves a \r\npoint of order, subject to the reservation. Without the \r\nobjection, the amendment is considered as read, and the \r\ngentleman from Florida will be recognized for 5 minutes.\r\n [The amendment of Mr. Wexler follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Wexler. Thank you, Mr. Chairman. This amendment would \r\nexpand Section 805 of the bill, which is the section which \r\ndefines material support for terrorism to include acts that \r\nassist terrorist groups by undermining the safety of our \r\nintelligence agents by leaking information leading to the \r\ndisclosure of their identities.\r\n While it already a crime to knowingly disclose classified \r\ninformation that identifies a covert agent under Title 50, \r\nSection 421, of the U.S. Code, this amendment would strengthen \r\nexisting protections by categorizing veiled or leading comments \r\nthat identify undercover intelligence officers or agents as \r\nproviding material support for terrorism, especially at this \r\ncritical juncture when the Federal Government is calling on \r\npatriotic Americans to fight our War on Terrorism by serving in \r\ndangerous intelligence gathering positions.\r\n We must treat the secrecy of covert agents with the \r\ngreatest possible care. After the outrageous outing of Valerie \r\nPlame as a CIA operative, it is time for Congress to send an \r\nunequivocal message to our intelligence community that we are \r\nprepared to do our part to protect them, as they risk their \r\nlives to protect our nation from terrorism.\r\n Flagrant disregard for the safety of our intelligence \r\nofficials and their contacts is a shameful betrayal of our \r\nintelligence community and greatly diminishes America's counter \r\nterrorism efforts.\r\n If brave and patriotic CIA and other intelligence \r\noperatives, whose unknown and unsung service is so crucial to \r\nthe safety of our nation, are to effectively, objectively, and \r\nindependently gather and analyze intelligence, they must trust \r\nabsolutely that their identities are safe from both knowing \r\nadmissions and from leading comments.\r\n If we learned anything, just one thing from the catastrophe \r\nof September 11th, it is when our intelligence officials fail, \r\nevery American becomes vulnerable to attack. CIA and other \r\nintelligence officials must not fear political retribution, \r\nwhatever their conclusions or opinions are. They must not be \r\npressured to abridge their conclusions and certainly the \r\nsecrecy of their identities must be held sacred.\r\n Those Americans, no matter how prominent or powerful they \r\nmay be, who compromise the identity of our intelligence \r\noperatives, are doing nothing short of providing material \r\nsupport for terrorism. They undermine the security of the \r\nUnited States and should be subject to prosecution under the \r\nPatriot Act.\r\n It is critical that we include extra protection for \r\nAmerica's covert agents provided for in this amendment.\r\n Surely, every member of this Committee condemns the outing \r\nof Ms. Plame, and I urge you to support the greater security \r\nfor our intelligence operatives that they deserve, which is \r\ncontained in this amendment.\r\n Thank you, Mr. Chairman.\r\n Chairman Sensenbrenner. Does the gentleman from Texas \r\ninsist upon his point of order?\r\n Mr. Smith. Mr. Chairman, it is my understanding that the \r\namendment has been redrafted and is now marginally germane, so \r\nI will withdraw my point of order.\r\n Chairman Sensenbrenner. Okay. The gentleman from Iowa, Mr. \r\nKing.\r\n Mr. King. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. I thank the Chairman and, you know, I listen with \r\namazement to this amendment as it's being described by the \r\ngentleman from Florida, and I think I read about four words \r\ninto this amendment before I identified this as the Carl Rove \r\nAmendment. And, you know, I'm wondering why it's not the Sandy \r\nBerger Amendment. I mean he really did have paper in his socks, \r\nand there really was something substantive there, but I didn't \r\nsee any action on your part during that entire minimal and \r\nquiet investigation that took place.\r\n And this is a serious business that we're ahead here \r\nmarking up the PATRIOT Act, and there are a lot of amendments \r\nto be dealt with today, but this doesn't belong in this bill.\r\n It's already a crime to divulge this information. And it \r\nisn't material support. It's a different definition. Material \r\nsupport is very clear and to expand it in this fashion, and \r\nthen add, add the language that the person has or should have \r\nreason to believe would be sufficient to be used to identify a \r\nUnited States intelligence operative or should have reason to \r\nbelieve is about as ambiguous as anything I've ever read and \r\nanything that's come before this Committee. Who's going to make \r\nthe judgment on what they should have had reason to believe? \r\nCan we make that today or can we do that after the fact?\r\n So this redefines material support as something that's not \r\nmaterial support. It's already a crime. There's already a way \r\nto deal with this, and that will be dealt with in due course in \r\na proper fashion, and it should not be dealt with in the \r\npolitical field here while we're marking up a very important \r\nserious bill that's going to be protecting the safety of all \r\nthe people in this nation for the next generation to come.\r\n So I'd urge a no vote on the Wexler Amendment, and I'd \r\nyield back the balance of my time.\r\n Chairman Sensenbrenner. For what purpose does the gentleman \r\nfrom California, Mr. Berman, seek recognition?\r\n Okay. The gentleman from New York, Mr. Weiner?\r\n Mr. Weiner. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized.\r\n Mr. Weiner. First of all, let the record indicate that now \r\nthe consensus in the nation is complete regarding Carl Rove, \r\nand it even includes the majority members of the Judiciary \r\nCommittee. And with that, I yield to my colleague from Florida, \r\nMr. Wexler.\r\n Mr. Wexler. Thank you. I specifically didn't mention any \r\nnames. But since the gentleman from Iowa did----\r\n Mr. King. Would the gentleman yield?\r\n Mr. Wexler. No, no, no.\r\n Mr. King. Valerie Plame would be a name.\r\n Mr. Wexler. I'm sorry?\r\n Mr. King. Would the gentleman yield.\r\n Mr. Wexler. Sure.\r\n Mr. King. Valerie Plame would be a name that you mentioned \r\nin your remarks----\r\n Mr. Wexler. That's true.\r\n Chairman Sensenbrenner. The time belongs to the gentleman \r\nfrom New York.\r\n Mr. Wexler. Yes, I did. I didn't mention any names in terms \r\nof people in the context of alleged violation of law. But since \r\nthe gentleman from Iowa did, I think it's appropriate to \r\nrespond in the context of Mr. Rove.\r\n The present standard used to protect the identity of \r\nundercover agents actually criminalizes the knowing disclosure \r\nof classified information that identifies that covert agent, as \r\nthe gentleman from Iowa so correctly pointed out.\r\n It's clear, however, that Mr. Rove knew about the \r\nprohibition and carefully designed his comments to be revealing \r\nenough to lead a reporter to undercover Ms. Plame's identity \r\nwithout revealing Ms. Plame's actual name or affiliation \r\noutright. The effect, however, on the safety, security, and the \r\nability of our undercover agents to do their job is exactly the \r\nsame.\r\n Whether his unquestionably egregious actions qualify as a \r\nviolation of current law is obviously still under review. I'm \r\nnot offering an opinion.\r\n But what I do know is that our covert agents deserve the \r\ngreatest possible degree of protection, not something that \r\ncould possibly be circumvented with if I only say it this way, \r\nI'll avoid the law, but the effect will be the same: an \r\nundercover CIA agent, her or his identity, will be disclosed to \r\nthe entire world, thereby, jeopardizing our intelligence \r\noperation.\r\n The amendment would simply provide a broader standard of \r\nprotection for the identity of undercover agents by amending \r\nSection 805 of the PATRIOT Act to include any information \r\npertaining to the identity of an undercover intelligence \r\nofficer. That's the least we should do to make certain that our \r\nCIA and intelligence officers have their identities protected.\r\n This is bigger than Mr. Rove. It's bigger than any \r\nindividual----\r\n Mr. Berman. Would the gentleman yield?\r\n Mr. Wexler. I yield to the gentleman from California?\r\n Mr. Berman. I thank the gentleman for yielding. Before the \r\ngentleman from Iowa gets too distraught about an amendment that \r\nproposes as a criminal standard has or should have reason to \r\nbelieve, I'm wondering if he had any information about how many \r\nof our criminal statues that can impose imprisonment or fines \r\nhave that standard already in the law, because I haven't \r\nnoticed any particular concern about narrowing the breadth of \r\nthat phrase in the existing statutes.\r\n Mr. King. Would the gentleman yield?\r\n Mr. Conyers. Would the gentleman yield?\r\n Chairman Sensenbrenner. Time belongs to the gentleman from \r\nNew York.\r\n Mr. Weiner. I yield to the gentleman from Michigan.\r\n Mr. Conyers. I thank the gentleman for yielding. The Wexler \r\nAmendment, members of the Committee, simply extends the Section \r\n805 to cover the specific case where, by using veiled \r\nreferences, you end up naming the person without putting the \r\nspelling of the name and the name of the organization.\r\n And for that reason, it's a very important extension \r\nbecause this could be used again and again and again by people \r\nwho want to avoid what the law presently provides to get around \r\nit. So I think this is a very useful and important amendment. I \r\nthank the gentleman.\r\n Mr. Weiner. And just reclaiming my time, you know, so far, \r\nwe've heard the opponents to amendments that would seek to ban \r\nguns being sold to terrorists as silly. Something that seeks to \r\nmake the laws tougher on leaking the names of covert operatives \r\nthat could get them killed, it's being called political. \r\nPerhaps one of these amendments will be considered on its \r\nmerits one of these days; that you'll say I don't believe that \r\nwe should conceal the identity of covert operatives. I don't \r\nbelieve that we should prevent guns from coming into the hands \r\nof terrorists.\r\n Let's have--this is an opportunity for us here to discuss \r\nthe merits of some of these things, and I would encourage my \r\ncolleagues to take the opportunity to do it.\r\n You know, a pedantic it's silly or it's political does not \r\ndo anything to diminish the merit of it, and I urge a yes vote \r\non the Wexler Amendment.\r\n Chairman Sensenbrenner. The gentleman's time has expired, \r\nand the Chairman is to strike the last word and recognizes \r\nhimself for 5 minutes.\r\n It's no secret that there has been a special prosecutor \r\nthat has been appointed by the Attorney General to look into \r\nthe entire issue.\r\n That special prosecutor is well known as a bulldog in the \r\nprosecutorial community and let's the chips fall where they \r\nmay. I believe in his role as U.S. Attorney for the Northern \r\nDistrict of Illinois, he indicted the former Republican \r\ngovernor of that state.\r\n I don't think any of us can say whether the law on \r\ndisclosing the names of covert CIA agents is adequate or \r\ninadequate until that special prosecutor issues his report, and \r\neither indicts people or decides that there is insufficient \r\nevidence to indict people.\r\n This is a serious issue, but until Mr. Fitzgerald completes \r\nthis investigation, I honestly think that we really do not know \r\nhow useful or not useful the current law is in tracking down \r\nthose that disclose the names of covert CIA agents.\r\n I think my Ranking Member and I and perhaps Mr. Lungren, \r\nwho were here at the time in the early '80's, remember that we \r\ndealt with this issue in terms of drafting the current criminal \r\nstatute, extensively. And while that statute has never really \r\ncome into play before now, I think it is into play now. I would \r\nalso point out that even though the name of Carl Rove has been \r\nmentioned, this law would have no--or this proposed amendment \r\nwould have no application to any case that may or may not \r\ninvolved Mr. Rove, because if this was enacted today, it would \r\nbe an ex post facto law and the circumstances relative to the \r\nleaking of Ms. Plame's name to reporters for the news media \r\ncould not be prosecuted under the law that is proposed by the \r\nWexler Amendment.\r\n For all these reasons, I would urge the defeat of this \r\namendment.\r\n Ms. Wasserman Schultz. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from Florida, Ms. \r\nWasserman Schultz.\r\n Ms. Wasserman Schultz. Thank you, Mr. Chairman. I move to \r\nstrike the last word.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Wasserman Schultz. Thank you, Mr. Chairman. Although \r\nthe Chairman just said that he's not sure where we should be \r\ngoing on this, and that it's something that we should probably \r\nbe looking at, I wanted to cite for you the remarks of George \r\nHerbert Walker Bush, the 41st President of the United States. \r\nIn his speech at the dedication ceremony for the George Bush \r\nCenter for Intelligence on April 26th of 1999, he said these \r\nare our enemies. ``To combat them, we need more intelligence, \r\nnot less. We need more human intelligence. That means we need \r\nmore protection for the methods we use to gather intelligence \r\nand more protection for our sources, particularly our human \r\nsources, people that are risking their lives for their country.\r\n ``Even though I'm a tranquil guy now at this stage of my \r\nlife, I have nothing but contempt and anger for those who \r\nbetray the trust by exposing the name of our sources. They are, \r\nin my view, the most insidious of traitors.''\r\n It is pretty clear that we need more protection and not \r\nless in the law, and of all places to insert that protection, I \r\nwould think it would be appropriate to insert it in the PATRIOT \r\nAct. And the gentleman from Iowa earlier stated that he could \r\nnot--that he has not seen less more vague language than the \r\nlanguage in the gentleman from Florida's amendment. One has \r\nonly to peruse the vast majority of the PATRIOT Act to look and \r\nfind vague language when it comes to the protections that are \r\nafforded to people who deserve quite a bit more certainty and \r\nclarity in the law than the PATRIOT Act affords them.\r\n Mr. King. Would the gentlelady yield?\r\n Ms. Wasserman Schultz. Yes.\r\n Mr. King. I thank the gentlelady, and I--the reason that I \r\nsaid I haven't seen language this ambiguous is because of the \r\nphrase or should have reason to believe. And I didn't believe \r\nwhen I said that, that that language existed anywhere in the \r\nU.S. Code and since that time we've confirmed that that \r\nlanguage doesn't exist anywhere in the U.S. Code, so I think \r\nthat would be a solid statement that this is very ambiguous, \r\nand I thank and I yield back.\r\n Mr. Berman. Would the gentlelady yield?\r\n Ms. Wasserman Schultz. Yes.\r\n Mr. Berman. Has the gentleman looked at the Foreign Corrupt \r\nPractices Act in making this decision, the conclusion about the \r\nU.S. criminal statutes?\r\n Mr. King. We had staff search the entire code.\r\n Ms. Wasserman Schultz. Mr. Chairman, I've reclaimed my \r\ntime.\r\n Mr. King. I can't answer specifically.\r\n Mr. Berman. If I--may I just?\r\n Ms. Wasserman Schultz. Yes. I'll yield to the gentleman \r\nfrom California.\r\n Mr. Berman. It is my belief, based on working on this \r\nstatute in the days when only Mr. Sensenbrenner and Mr. Hyde \r\nand Mr. Lundgren and Mr. Conyers would remember that one of the \r\nclear standards or vague standards in the Foreign Corrupt \r\nPractices Act is that when you pass money to your corporate \r\nagents, that if you knew or should have had reason to know that \r\nthat--knew or should have reason to know that that money was \r\ngoing to be used to bribe a foreign government official for \r\ncorrupt purposes that is a crime. I'm unclear about what code \r\nyou searched?\r\n Mr. Wexler. Would the gentleman yield?\r\n Chairman Sensenbrenner. Time belongs to the gentlewoman \r\nfrom Florida, Ms. Wasserman Schultz.\r\n Mr. Wexler. Will the gentlelady yield?\r\n Ms. Wasserman Schultz. I yield to the gentleman from \r\nFlorida.\r\n Mr. Wexler. How about we make a deal? If Mr. King is right \r\nand the language is not in the U.S. Code, and, therefore, it is \r\nso nebulous, I'll withdraw the amendment. But if it is in the \r\nU.S. Code, then we accept it, because then, clearly, it's not \r\nnebulous, and we've got the criminal law that already exists. \r\nThat's fair; right?\r\n Mr. King. If the gentlelady would yield?\r\n Chairman Sensenbrenner. Will the gentlewoman from Florida \r\nyield?\r\n Ms. Wasserman Schultz. I will.\r\n Chairman Sensenbrenner. As the honest broker here, maybe \r\nthe gentleman could withdraw his amendment, and we can look \r\nfurther in the U.S. Code, and he can always reoffer it.\r\n Mr. Wexler. What did I get out of that deal?\r\n Chairman Sensenbrenner. The commitment you can reoffer it.\r\n Mr. Wexler. The Chairman certainly seems quite genuine, so \r\nI would respect his wishes if that's the case.\r\n Chairman Sensenbrenner. The amendment is withdrawn. Are \r\nthere further amendments?\r\n Mr. Schiff. Mr. Chairman, I have that amendment at the desk \r\nnow.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff, has an amendment at the desk.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff. \r\nAt the end of the bill add the following new section. Section \r\nProhibition on Planning Terrorists Attacks on Mass \r\nTransportation. Section 1993 (a)(3) of title 18, United States \r\nCode is amended a) by redesignating paragraphs 6 through 8 as 7 \r\nthrough 9, respectively, and b) by inserting after paragraph 5 \r\nthe following: 6. Surveils, photographs, videotapes, diagrams \r\nor otherwise collects information with the intent to plan or \r\nassist in planning any of the acts in the preceding paragraphs.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff, is recognized for 5 minutes.\r\n Mr. Schiff. Thank you, Mr. Chairman. This amendment is \r\nfairly straightforward. It amends the section of the PATRIOT \r\nbill that was designed to strengthen the criminal laws against \r\nterrorism in Section 801 of the PATRIOT bill. And it provides \r\nthat if you were involved in surveilling, photographing, \r\nvideotaping, diagraming or otherwise collecting information \r\nabout a mass transit system with the intent to plan or assist \r\nin basically committing a terrorist act against that mass \r\ntransit system, that ought to be a prohibited offense----\r\n Chairman Sensenbrenner. Will the gentleman yield?\r\n Mr. Schiff. Yes, Mr. Chairman.\r\n Chairman Sensenbrenner. I think it should be a prohibited \r\noffense, too, and I am happy to accept the amendment.\r\n Mr. Schiff. Thank you, Mr. Chairman. And I would yield back \r\nthe balance of my time.\r\n Mr. Nadler. Mr. Chairman, a point of inquiry.\r\n Chairman Sensenbrenner. The rules don't call for a point \r\nof----\r\n Mr. Nadler. I just have a question.\r\n Chairman Sensenbrenner. Okay. Well, if maybe the gentleman \r\nshould California should not yield back.\r\n Mr. Schiff. I think I'd be yielding to the gentleman----\r\n Chairman Sensenbrenner. And yield to the gentleman from New \r\nYork.\r\n Mr. Nadler. Thank you. I have a question. Under your \r\namendment, it's an element of the crime that he has to have the \r\nintent to plan or assist. So if someone is simply \r\nphotographing, you'd have to prove intent?\r\n Mr. Schiff. Absolutely.\r\n Mr. Nadler. Okay. I think it's a good amendment, and I \r\nthank the gentleman.\r\n Chairman Sensenbrenner. Okay. The question is on agreeing \r\nto the amendment offered by the gentleman from California, Mr. \r\nSchiff. Those in favor will say aye? Opposed, no?\r\n The ayes appear to have it.\r\n Ms. Lofgren. Mr. Chairman?\r\n Chairman Sensenbrenner. Does the gentlewoman from \r\nCalifornia want a rollcall?\r\n Ms. Lofgren. No, I was just trying to be recognized for an \r\namendment.\r\n Chairman Sensenbrenner. Well, the ayes appear to have it on \r\nthe Schiff Amendment. The ayes have it. And the amendment is \r\nagreed to.\r\n For what purpose the gentlewoman from California, Ms. \r\nLofgren, seek recognition?\r\n Ms. Lofgren. I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Ms. Lofgren. Number five.\r\n The Clerk. Amendment to H.R. 3199 offered by Ms. Lofgren of \r\nCalifornia. Add the end of the bill, add the following: \r\nSection, Preventing the Transfer of 50-Caliber Sniper Weapons \r\nto Terrorists. Section 2239 (A) of Title 18 United States Code \r\nis amended 1) in Subsection A by inserting 1) transfers 50 \r\ncaliber sniper weapon to an individual knowing that the \r\nindividual is a member of al-Qaeda, or 2) after whoever and 2) \r\nin Subsection----\r\n Ms. Lofgren. I'd ask unanimous consent that the amendment \r\nbe considered as read.\r\n Chairman Sensenbrenner. Without objection, so ordered. The \r\ngentlewoman is recognized for 5 minutes.\r\n [The amendment of Ms. Lofgren follows:]\r\n \r\n \r\n Ms. Lofgren. This is a simple and commonsense amendment \r\nthat would punish those who sell dangerous rifles to known \r\nterrorists who are al-Qaeda members. I think the case for the \r\namendment is clear and immediate. It's not a gun control issue. \r\nIt's a national security issue. Fifty caliber anti-armor sniper \r\nrifles are an ideal tool for terrorists. Armored personnel \r\ncarriers, rail cars carrying hazardous materials and most \r\ndisturbingly civilian aircraft are vulnerable to these types of \r\nrifles.\r\n In fact, even early promotional materials for the 50-\r\ncaliber rifle referenced their threat to civilian aircraft. The \r\npromotional materials state that the weapon could target, and I \r\nquote: ``the compressor section of jet engines, making it \r\ncapable of destroying multi-million dollar aircraft with a \r\nsingle hit delivered to a vital area.'' The rifle's brochure \r\ngoes on to say that the cost effectiveness of the 50-caliber \r\ncannot be overemphasized when a round of ammunition purchased \r\nfor less than $10 can be used to destroy or disable a modern \r\njet aircraft.\r\n The military also recognizes this threat. A 1995 Rand \r\nreport inspired the Air Force to train a special counter sniper \r\nteam to respond to the 50-caliber sniper threat to its aircraft \r\nand personnel. Since 9\/11, our country has made great efforts \r\nto secure our civilian airplanes and airports. Terrorists will \r\nobviously adapt to our tactics, so it's vital that we think \r\nahead. It doesn't take a rocket scientist to figure out that if \r\nwe make it difficult to get weapons on a plane or into an \r\nairport, terrorists may look to destroy airplanes from longer \r\ndistances, and that's what the 50-caliber rifle is designed to \r\ndo.\r\n These rifles are accurate at ranges of at least 1,000 yards \r\nand even further in the hands of trained marksman. In essence, \r\nthese weapons could give a terrorist the ability to take a shot \r\nat an aircraft from beyond most airport security perimeters.\r\n There is already evidence that terrorists have sought these \r\nweapons. According to the Violence Policy Center, al-Qaeda \r\nbought 25 50-caliber anti-armor sniper rifles in the 1980's.\r\n Although I personally believe that these weapons should be \r\noutlawed altogether, this amendment doesn't do that. It's more \r\nmodest.\r\n It simply provides that if you transfer a 50-caliber rifle \r\nto someone who you know is a member of al-Qaeda, that you will \r\nbe guilty of providing material support for terrorism. In \r\ntruth, this Congress should outlaw the transfer of any type of \r\nweapon to a person who's on the Terrorist Watch List, as Mr. \r\nVan Hollen suggest earlier. But today, at the least, let's \r\noutlaw the transfer of armor piercing, long-range sniper rifles \r\nto known al-Qaeda members. I don't see how anyone on this \r\nCommittee could oppose that goal.\r\n Preventing terrorism on our shores does not only mean \r\nsecuring our borders, it means preventing terrorists from \r\nobtaining the weapons they need to carry out their destructive \r\nacts.\r\n This modest amendment will help to do that, and I urge my \r\ncolleagues to support it. I would note that the discussion of--\r\nthat we had under Mr. Van Hollen's amendment is avoided here. \r\nThere need be no discussion, as my colleague from California \r\nindicated earlier about whether or not a list is accessible, \r\nwhether it is classified. This amendment simply says if you \r\nknow that the person you're selling a 50-caliber weapon to is \r\nan al-Qaeda member, then you fall within the statute.\r\n So I hope that this amendment will be supported. I cannot \r\nimagine why anyone would not support it. And, Mr. Weiner, are \r\nyou asking for--and I would yield back the balance of my time.\r\n Mr. Lungren. Would the gentlelady yield?\r\n Ms. Lofgren. I would yield.\r\n Mr. Lungren. Or just a question.\r\n Ms. Lofgren. Yes.\r\n Mr. Lungren. And that is can the gentlelady tell me whether \r\nor not this activity is currently prohibited under current law. \r\nBecause as I read it, it says whoever knowingly provides \r\nmaterial support or resources to a foreign terrorist \r\norganization. This would be material support or resources. al-\r\nQaeda is an identified foreign terrorist organization; is \r\ninvolved in a prohibited activity. So I'm just asking----\r\n Ms. Lofgren. Well, no.\r\n Mr. Lungren. Yours appears to be more narrowly drawn than \r\nwhat the general law is now----\r\n Ms. Lofgren. No, because this would not be to al-Qaeda \r\ngenerally. It would be any member, any member of al-Qaeda.\r\n Mr. Lungren. Well, as I understand--maybe someone could \r\ntell me if I'm wrong. But as I would understand it, if you give \r\nit to----\r\n Ms. Lofgren. I think you are.\r\n Mr. Lungren.--individual as a member of a terrorist \r\norganization, that could be deemed as giving material support \r\nto the terrorist organization.\r\n Ms. Lofgren. This makes us very--you've got a deeming in \r\nthere that I don't think the statute has clearly identified.\r\n This makes it all totally clear. If you know that the \r\nperson who is buying this 50-caliber weapon is an al-Qaeda \r\nmember, then you've fallen afoul of the statute.\r\n Chairman Sensenbrenner. The gentlewoman's time has expired. \r\nThe gentleman from Iowa, Mr. King.\r\n Mr. King. Thank you, Mr. Chairman.\r\n Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. I thank the Chairman, and I--you know, I have \r\nwatched this consistent approach to the 50-caliber weapons \r\nconsistently the last few years. I don't really know why the \r\n50-caliber weapons have been demonized, but it continues.\r\n And I'd inform the Committee a little bit of the history of \r\n50-caliber weapons. They go back. I call them the original \r\nbuffalo guns, the Sharps 50-caliber. Buffalo Bill Cody. They \r\nwere the guns that settled the West.\r\n They're a traditional gun in this country. They're hanging \r\nin the Smithsonian. There's more modern versions, of course, \r\nlike there are with many other calibers of weapons.\r\n To pick on the 50-caliber, if you could do that \r\nsuccessfully, then you're going to see a 51-caliber, a 49-\r\ncaliber. But that's not necessarily the point of this \r\namendment.\r\n And I concur with the gentleman from California in that \r\nthere's already--it's already against the law to transfer these \r\nweapons to al-Qaeda members today, but I believe the flaw in \r\nthis amendment is that it's only al-Qaeda.\r\n And if you address al-Qaeda and say we cannot then send 50-\r\ncaliber weapons to them, which I believe is against the law \r\nunder the current code, then, by implication, if you continue \r\nadding to this section of the code, you're going to see the \r\nimplication that you can transfer to maybe some other terrorist \r\norganization that's on that list of 41 terrorist watch lists.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. King. I would yield. I yield to the lady from \r\nCalifornia.\r\n Ms. Lofgren. If this would pass, I would happily offer \r\nadditional amendments with additional terrorists organizations.\r\n Mr. King. Reclaiming my time, I appreciate the alertness of \r\nthe gentlelady from California, and I yield back to the \r\ngentleman from California.\r\n Mr. Lungren. I'm just trying to figure out how you give \r\nsomething to an organization without giving it to an \r\nindividual?\r\n Does someone give the weapon to the corporate organization \r\nal-Qaeda? It seems to me it's inherent in the already existing \r\nstatute that one gives a weapon to a member of a terrorist \r\norganization; one is giving to the terrorist organization \r\nknowingly, knowingly; knowing that the individual is a member.\r\n So I think what the gentlelady is suggesting is already \r\ncovered and it doesn't have to be a 50-caliber. It could be any \r\ntype of weapon as I read the statute currently.\r\n Mr. King. Reclaiming my time. And I'd add that the \r\nammunition that's referenced by the gentlelady as ammunition is \r\nvery strictly controlled ammunition. There's never been a jet \r\nor a plane shot down by a 50-caliber weapon, and it would be \r\nunlikely I think to ever get that perfect lucky shot at a \r\nmoving jet for that to ever happen; but other calibers to do it \r\nas well under the same scenario. I'd yield to the gentleman \r\nfrom Texas.\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Gohmert. Well, he's yielded to me. Thank you. I \r\nappreciate the gentleman from Iowa. 18 U.S.C. Section 2, this \r\nis the Federal Criminal Code. It says whoever commits an \r\noffense against the United States or aids, abets, counsels, \r\ncommands, induces, procures its commission is punishable as a \r\nprincipal. And I'm telling you what. That's pretty stout \r\nevidence. I've seen a whole lot less evidence convict and \r\naccomplice as a principal. If you transfer any kind of weaponry \r\nto a member of al-Qaeda, and you know they're a member of al-\r\nQaeda, I'd say pretty well most everywhere except certain \r\ncounties in California, you're toast. You're going to be \r\nconvicted as a principal and I'd a whole lot--rather than be \r\nconvicted--I'm sorry--deference to the gentleman from \r\nCalifornia.\r\n But the law takes care of this already. You do anything \r\nknowing that somebody is a member of a terrorist organization, \r\nyou're going to be a principal as a terrorist yourself. Thank \r\nyou. I yield back to Mr.----\r\n Mr. King. I thank the gentleman from Texas and I would add \r\nthat this amendment, though it maybe it's well intentioned, it \r\ndoes clutter the code. It's clearly prohibited in the existing \r\ncode that we have, and I'd urge a no vote on the amendment. I \r\nyield back.\r\n Mr. Watt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Watt.\r\n Mr. Watt. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Watt. I guarantee you I won't take 5 minutes. I just \r\nwant to submit somewhere in the record the Barney Frank \r\nstatements from years gone by when he served on this Committee. \r\nRedundancy is sometimes good. And when we hear people saying \r\nthat the only objection that they have to something is because \r\nit's already in the statute, and is redundant, then you know--\r\nthen you know they've kind of lost the way here.\r\n Our statutes are replete with redundancies, and the fact \r\nthat this may already be covered--may that doesn't trouble me \r\nat all. I'm wisely in favor of redundancy on this issue to make \r\nit absolutely clear.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Watt. I yield to the gentlelady.\r\n Ms. Lofgren. I appreciate his comment. I don't believe it \r\nis redundant, but if it is, I heartily concur that to be clear \r\non this matter is to defend our country, and I would hope--I \r\nunderstand that we have a different point of view, and it's not \r\nentirely just based on party lines either. Certainly, Mr. \r\nBoucher has voted with the majority on all of the gun issues, \r\nand he's not here now. But the--this goes beyond the fight on \r\ngun ownership. And if we can't vote yes on this, I think we got \r\nsome explaining to do, and I thank the gentleman for yielding.\r\n Mr. Watt. I yield back.\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nNadler.\r\n Mr. Nadler. Thank you, Mr. Chairman. I rise in support. I \r\nmove to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Nadler. I rise in support of this amendment and \r\nassociate myself with the remarks of the gentlelady from \r\nCalifornia.\r\n But I hadn't planned to speak on this amendment, but I had \r\nto correct the record in one respect. I heard someone say that \r\nno jet aircraft has ever been shot down by a 50-caliber weapon. \r\nI beg to differ. Anyone who knows anything about the history of \r\nthe Korean War knows that every jet aircraft shot down by \r\nanother jet aircraft in the Korean War was shot down by a 50-\r\ncaliber weapon.\r\n The MIGs and the F-86s and the F-80's were all armed with--\r\n--\r\n Mr. King. Would the gentleman yield?\r\n Mr. Nadler. With 50-caliber machine guns. That's how you \r\nshot down airplanes before you got the missiles. So don't tell \r\npeople that you can't shoot down a jet aircraft----\r\n Mr. King. Would the gentleman yield?\r\n Mr. Nadler.--with a 50-caliber weapon. Yes, I'll yield.\r\n Mr. King. I thank the gentleman. I'm referencing the \r\ndefinition that's in the amendment, which is a sniper rifle \r\nrather than twin 50-caliber machine guns. Thank you.\r\n Mr. Nadler. Well, reclaiming my time, as was said before, a \r\nlucky shot from a even--not a machine gun, but from one--any--a \r\n50-caliber weapon can, in fact, penetrate armor. It can shoot \r\ndown an aircraft. It's dangerous. I yield back.\r\n Mr. Weiner. Will the gentleman yield on that point?\r\n Mr. Nadler. Yes, I yield back.\r\n Mr. Weiner. And I would also point out that I don't believe \r\nthat an aircraft had been used as a weapon before September \r\n11th in an act of terrorism against the United States as well.\r\n If our standard is to simply wait for some things to be \r\nused before we ban it, I would argue that we wait too long. And \r\nI yield back to the gentleman.\r\n Mr. Nadler. And I yield back.\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. Thank you very much, Mr. Chairman and members. \r\nThere must be people listening to this discussion and debate \r\nand wondering how we could spend so much time on this issue of \r\nwhether or not we're going to ban a weapon from being given to \r\nor sold to terrorists, when, in fact, we're here talking about \r\nthe reauthorization of the PATRIOT Act and how we can secure \r\nthe homeland and make sure that we create public policy that \r\nwill better secure the homeland even at the risk of undermining \r\nour civil liberties.\r\n So you have an amendment that's clear. It has been argued \r\nthat it's redundant; that it's already in law, and then I \r\ncannot help but raise the question so what harm will it do to \r\nreinforce what is existing law. Why is it a resistance so \r\nstrong from the opposite side of the aisle on something that \r\nobviously can do no harm, but could better identify the meaning \r\nof the law as it relates to the transfer of arms to a terrorist \r\norganization?\r\n It seems to me something else underlies this. Something \r\nelse is at stake. What is it? What is this protection that is \r\nbeing offered from my friends on the opposite side of the \r\naisle? Is it the sole argument that if you open the door in any \r\nway to limit the possession and the use and the ownership of \r\nguns, that somehow you're going to fly in the face of my \r\nfriends of the gun lobby.\r\n Mr. Watt. Would the gentlelady yield?\r\n Ms. Waters. Yes, the gentlelady will yield.\r\n Mr. Watt. I heard that you were out meeting with Barney \r\nFrank before you made this statement. It sounds like he rubbed \r\noff on you on this redundancy issue. You're giving his speech.\r\n Ms. Waters. Well, this is my speech, Mr. Watt, and if you \r\nwill sit back and listen to it----\r\n Chairman Sensenbrenner. Without objection, the copyright \r\nlaw is suspended for the next 3 minutes.\r\n Ms. Waters. That's right. So let me just continue with my \r\nspeech and my take on this that says again that I think this is \r\nbetter an argument for why those on the opposite side of the \r\naisle who would like to protect the gun lobby rather than a \r\nconcern, a genuine concern, about bending over backwards to \r\nensure that we secure the homeland and that we do everything \r\npossible to keep weapons out of the hands of terrorists.\r\n Now, we've not had that part of the discussion. We have \r\nthis discussion that's camouflaged about redundancy and a whole \r\nlot of other things. But the fact of the matter is it certainly \r\nis not going to do any harm.\r\n So I would suggest that we hurry up again, Mr. Chairman, \r\nand get to the vote, because I want to see the votes cast on \r\nthis one.\r\n So move it, Mr. Chairman.\r\n Chairman Sensenbrenner. The time of the gentlewoman has \r\nexpired. The gentleman from Texas, Mr. Smith.\r\n Mr. Smith. Okay. Thank you, Mr. Chairman. I'd like to ask a \r\ncouple of questions or direct a couple of questions to the \r\ngentlewoman from California, Ms. Lofgren. And let me say at the \r\noutset that I don't doubt her sincerity or her motive in \r\noffering this amendment.\r\n But I have two concerns. The first deals with the language \r\nwhere in the amendment it refers to a member of al-Qaeda. \r\nThat's a specific and single organization; whereas, the \r\nstatute, paragraph 2.339 refers to foreign terrorist \r\norganization, which might include many more terrorist \r\norganizations than just the ones she referred to.\r\n Now, I realize that she can really do that under unanimous \r\nconsent and insert that phrase. So let me mention my second \r\nconcern, and it this: that as the gentlewoman knows when you \r\ninterpret legislation, specific language holds greater sway \r\nthan more general language, and I am concerned that by \r\nspecifically mentioning a type of weapon here, the 50-caliber \r\nsniper gun or weapon, that that might, by implication, mean \r\nthat other types of weapons, other types of arms might not be \r\ntaken as seriously under the usual limitation of legislation.\r\n So those are my two concerns and the reason that I would \r\noppose the amendment, and the gentleman from California is \r\nwelcome to respond to those concerns.\r\n Ms. Lofgren. Mr. Smith, I drafted this because I felt that \r\nin a way it was a test to see if there was anything that \r\nregulating guns and terrorists that would pass your side of the \r\naisle.\r\n If--first of all, if you feel that an amendment to clarify \r\nthe terrorist heading needs to be made, I would move that we \r\nunanimously----\r\n Mr. Smith. Reclaiming my time, I was aware that you----\r\n Ms. Lofgren.--we do that by unanimous consent.\r\n Mr. Smith.--probably ask for UC for that, but my second \r\nconcern was again the specificity that is mentioned in your \r\namendment might undermine the intent in regard to other types \r\nof weapons.\r\n Ms. Lofgren. If--I don't believe it does, but on that \r\npoint, if I may, I would ask unanimous consent to strike the \r\nreference to 50 calibers and make it any firearms, if the \r\ngentleman is suggesting that.\r\n Mr. Smith. Well, I still think you run into the same \r\nproblem because----\r\n Ms. Lofgren. Firearms or weapon.\r\n Mr. Smith.--the statute goes beyond firearms and weapons. \r\nIt talks about all--what' the--if the gentlewoman wants to take \r\na look at it, it talks about all material support. Material \r\nsupport is a lot broader than just weapons or firearms.\r\n Mr. Lungren. Would the gentleman from Texas yield?\r\n Mr. Smith. And so my concern would still hold I'm afraid.\r\n Mr. Lungren. Would the gentleman from Texas yield?\r\n Mr. Smith. Yes. Be happy to yield.\r\n Mr. Lungren. I mean specifically by the statute, as the \r\ngentleman refers to, material support of resources means all \r\nsorts of things, including weapons, lethal substances, \r\nexplosives, personnel, transportation, other physical assets. \r\nSo it is all inclusive. Obviously, the caliber and every other \r\ncaliber----\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Lungren.--is included within the statute already.\r\n Mr. Smith. It's my time and, yes, I'll yield.\r\n Ms. Lofgren. It seems to me that your side of the aisle \r\ncan't have it both ways. Either it's already included or else \r\nit's--the specificity does not cause harm. It can't be both.\r\n Mr. Smith. Yes, it can. I'll reclaim my time, and I don't \r\nwant to belabor the point. But the point is the statute is \r\ngeneral. I think it's better to not single out any particular \r\ntype of weapon or firearm. It's better to leave the statute \r\ngeneral and have the entire section applied to any type of \r\nmaterial support and not by implication say that some material \r\nsupport is more serious or less serious than others, and I'll \r\nyield back the balance of my time.\r\n Chairman Sensenbrenner. The gentleman from Maryland, Mr. \r\nVan Hollen.\r\n Mr. Van Hollen. Thank you, Mr. Chairman. I move to strike \r\nthe last word, and I hadn't----\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Van Hollen.--intended to join in this debate, but since \r\nwe are focused in specifically on the language in the section \r\nthat already exists in the PATRIOT Act regarding providing \r\nmaterial support; and the argument is this is redundant. It is \r\nnot. If you look at the existing language, one of the elements \r\nof proving somebody guilty of aiding material support here is \r\nthey have to not just know that they're transferring to a \r\nmember of al-Qaeda, but they have to have knowledge or \r\nintending that they are to be used in preparation for and \r\ncarrying out in violation of certain acts.\r\n And the mere transfer of the weapon under this--even if you \r\nknow it's someone under al-Qaeda--is not covered by this \r\nsection, providing material support, which is one of the \r\nreasons we offered the earlier amendment that related to \r\ntransferring firearms to people who were on the terrorist watch \r\nlist. You can't have it both ways. You can't say this is too \r\nnarrow because it only says al-Qaeda and doesn't cover other \r\nterrorist organizations. You can't say it's too narrow. It only \r\ncovers 50-caliber and not all firearms, because the earlier \r\namendment that you rejected covered people on the Terrorist \r\nWatch List and it covered all firearms.\r\n And so what this amendment gets at is a very--it really \r\ndoes go just to how far we're willing to go in terms of \r\nproviding terrorists with protections under the law.\r\n And what this amendment does is says it is a--you are \r\noffering material support if you transfer a weapon, knowing \r\nsomeone is a member of al-Qaeda. The current language does not \r\nmake that a crime. That does not make it part of providing \r\nmaterial support. Under the current law, you not only have to \r\nknow you're providing to al-Qaeda, but you have to prove that \r\nthe individual knew that al-Qaeda member was going to then use \r\nthat weapon in a criminal action.\r\n I think we can reasonably conclude that if you know you're \r\ntransferring it to a member of al-Qaeda, that the protection of \r\nthe American people requires that that, by itself, be \r\nconsidered requiring material support, and that's what this \r\namendment----\r\n Ms. Lofgren. If the gentleman would yield. I thank the \r\ngentleman for his clarification, and I guess, you know, you \r\nmight know--not know what the al-Qaeda member wanted to do with \r\nthe 50-caliber rifle. Maybe they wanted to use in that \r\ntraditional buffalo gun referenced by our colleague from the \r\nother side of the aisle. But it's a balance. What's more \r\nimportant? The security of the American people or some mythic \r\nbuffalo gun history when you're talking about a member of al-\r\nQaeda?\r\n I would just like to say this. I think that it's obvious \r\nthat the members on the other side of the aisle are not going \r\nto accept this. I think the rationale for avoiding this has \r\nbeen tortured at best. I think it's quite transparent and \r\nunfortunate. And I yield back to Mr. Van Hollen, and thank you \r\nfor yielding me the time.\r\n Mr. Van Hollen. I thank my colleague, and I just want to \r\nagain emphasize the point that the existing language in this \r\nsection on material support does not cover the contingency that \r\nthe Lofgren Amendment covers. Thank you.\r\n Chairman Sensenbrenner. Would the gentleman yield back? The \r\nquestion is on the amendment offered by the gentlewoman from \r\nCalifornia, Ms. Lofgren. Those in favor will say aye. Opposed \r\nno?\r\n Noes appear to have it.\r\n Ms. Lofgren. May I have a recorded vote, Mr. Chairman?\r\n Chairman Sensenbrenner. A recorded vote is ordered. Those \r\nin favor of the Lofgren Amendment will as your names are called \r\nanswer aye. Those opposed, no. And the Clerk will call the \r\nroll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n [No response.]\r\n The Clerk. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? The gentleman from North Carolina, Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nSmith?\r\n Mr. Smith. Mr. Chairman, I vote no.\r\n The Clerk. Mr. Smith, no.\r\n Chairman Sensenbrenner. The gentleman from Utah, Mr. \r\nCannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 13 ayes and 22 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments?\r\n The gentleman from New York, Mr. Weiner.\r\n Mr. Weiner. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Weiner. Two one two. Area code for some of New York \r\nCity.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Weiner \r\nand Ms. Sanchez. At the end of the bill, add the following new \r\nsection. Section----\r\n Mr. Weiner. Mr. Chairman?\r\n The Clerk. Expansion of grants to first responders----\r\n Mr. Weiner. Mr. Chairman?\r\n Mr. Smith. Mr. Chairman, I reserve a point of order.\r\n Chairman Sensenbrenner. Point of order is reserved. The \r\ngentleman from New York.\r\n Mr. Weiner. Mr. Chairman, this is an amendment that----\r\n Chairman Sensenbrenner. Does the gentleman ask unanimous \r\nconsent that the amendment be considered as read?\r\n Mr. Weiner. I thought that had already been done. Yes, I \r\ndo, Mr. Chairman.\r\n Chairman Sensenbrenner. Without objection, subject to the \r\nreservation by the gentleman from Texas. The gentleman from New \r\nYork is recognized for 5 minutes.\r\n [The amendment of Mr. Weiner and Ms. Sanchez follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Weiner. Mr. Chairman, the amendment that the gentlelady \r\nfrom California and I offer is one that frankly has found favor \r\nin this Committee on two other occasions. When we considered \r\nthe 9\/11 Commission recommendation, the legislation to \r\nreauthorize the COPS Program and insert it in that vehicle, it \r\nwas passed by this Committee, as it was in the DOJ \r\nreauthorization bill.\r\n In both cases, the leadership of this House and the Rules \r\nCommittee stripped that language from the bill. This is another \r\nthrust at the same attempt. This picks up on the grant making \r\nthat was in the PATRIOT Act that we're reauthorizing today. It \r\nwould provide $1 billion for the next 3 years; 13,000 new cops \r\non the beat nationally each year. And it would do what \r\nSecretary Ridge argued we needed to do, which was to start our \r\nhomeland security fight in our home towns.\r\n I don't need to argue before this Committee the value of \r\nthe COPS Program. Every member in this body that are in \r\ndistricts has been helped by the COPS Program. It provides \r\nFederal assistance to provide law enforcement that are now \r\nspending so much of their time doing anti-terrorism work, and \r\nin the interest of time, I yield to the gentlelady from \r\nCalifornia, Ms. Sanchez.\r\n Ms. Sanchez. I'd like to thank the gentleman from New York \r\nfor yielding some time and for letting me join him in offering \r\nthis very important amendment.\r\n Just very briefly, the Weiner-Sanchez Amendment achieves \r\ntwo very important homeland security objectives.\r\n First, it provides more funding and authorization for law \r\nenforcement agents, including those in the community oriented \r\npolicing programs. And second, it helps increase the security \r\nmeasures and new technologies that will help prevent us from \r\nfuture terrorist attacks.\r\n As my colleague from New York has said, it's found favor \r\nwith this Committee and I would urge my colleagues on both \r\nsides of the aisle to support this amendment.\r\n And I yield back to the gentleman from New York.\r\n Mr. Weiner. And before I yield back, I just want to commend \r\nthe Chairman, who has been open minded in support of the idea \r\nof getting COPS reauthorized, and we've tried to do this on a \r\ncouple of occasions. This is this year's moving vehicle and the \r\nmost appropriate place to insert this language, and with that, \r\nI yield back my time.\r\n Chairman Sensenbrenner. Does the gentleman from Texas \r\ninsist on his point of order?\r\n Mr. Smith. Mr. Chairman, I do insist on my point of order.\r\n Chairman Sensenbrenner. The gentleman will state his point \r\nof order.\r\n Mr. Smith. Mr. Chairman, I want to make the point of order \r\nthat this amendment is not germane. Under House Rule 16, we are \r\nprohibited from considering any amendment that is--has a \r\nsubject different from that under consideration.\r\n And in this case, there is no provision, title, section in \r\nthe PATRIOT Act that deals with the COPS Program and for that \r\nreason and because it doesn't fall under any other primary \r\npurpose of the PATRIOT Act, this amendment is non-germane, and \r\nI would insist on that point of order.\r\n Chairman Sensenbrenner. Does the gentleman----\r\n Mr. Weiner. Mr. Chairman, may I be heard on the point of \r\norder?\r\n Chairman Sensenbrenner. The gentleman from New York.\r\n Mr. Weiner. I would refer the gentleman to the section of \r\nthe PATRIOT Act that he just said is not in the bill that \r\nrefers to, and I quote: ``first responder assistance.'' These \r\nare grant authorizations, terrorism prevention grants. In fact, \r\nthere is a section in the PATRIOT Act that refers to this.\r\n As far as there not being in the title, well, we are \r\nreauthorizing the PATRIOT Act as indicated on the notice from \r\nthe Committee, as indicated on the bill from the Committee, as \r\nindicated on the discussion draft from the Committee, as \r\nindicated from the memo to members from the staff and the \r\nChairman of the Committee. So clearly, it's within the purview \r\nof the PATRIOT Act as it has been in the past.\r\n Mr. Smith. Would the gentleman from New York yield briefly?\r\n Mr. Weiner. Certainly.\r\n Mr. Smith. I just want to make the point that the provision \r\nto which the gentleman refers is actually not being \r\nreauthorized today, nor is it under the purview of the primary \r\npurpose of the bill being reauthorized today. And for that \r\nreason, I still think it's non-germane.\r\n Mr. Weiner. Well, if it----\r\n Chairman Sensenbrenner. The chair is prepared to rule. Now, \r\nfor the reasons articulated by the gentleman from Texas, Mr. \r\nSmith, that the amendment proposes a different subject than \r\nthat contained in the bill, the chair sustains the point of \r\norder.\r\n Are there further amendments? The gentlewoman from \r\nCalifornia, Ms. Lofgren?\r\n Ms. Lofgren. I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Ms. Lofgren. It's 34.\r\n The Clerk. Amendment to H.R. 3199, offered by Ms. Lofgren \r\nof California.\r\n At the end of the bill, add the following: Section, \r\nEnhanced Review of Detention----\r\n Ms. Lofgren. I'd ask unanimous consent that the amendment \r\nbe considered as read.\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read. And the gentlewoman from California is \r\nrecognized for 5 minutes.\r\n [The amendment of Ms. Lofgren follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Ms. Lofgren. Mr. Chairman, the material witness law, \r\nenacted in 1984, allows the government to arrest persons who \r\nare needed as witnesses in ongoing criminal investigations, but \r\nwho might not comply with the conventional subpoena.\r\n In essence, this law was designed to get evidence from \r\nfrightened or recalcitrant witnesses. It was not designed as a \r\ncounter-terrorism tool to allow the government to detain anyone \r\nit had suspicions about.\r\n Yet, there are real questions about how the Department of \r\nJustice is utilizing this statute. Specifically, it appears \r\nthat the Department may be bending the material witness statute \r\ninto a tool to detain suspects without charge or due process, \r\nwhile it investigates them for possible links to terrorism. As \r\nthe Chairman may recall, during our hearings, I asked the \r\nDepartment of Justice for information on this very subject. And \r\nto date that information has not been forthcoming.\r\n In June 2005, a report by Human Rights Watch found that 70 \r\nsuspects held as material witnesses since 9\/11, of the 70, \r\nalmost half were actually never brought before a grand jury or \r\na court to testify. The report also found that many were never \r\ntold the reason for their arrest or allowed access to a lawyer.\r\n Of the 70 suspects, only 28 were ever charged with a crime, \r\nmost of which were unrelated to terrorism.\r\n This report also states that about one-third were held for \r\nat least 2 months and that one material witness was imprisoned \r\nfor a year. They claim or the report claims that many of these \r\nindividuals were held in solitary confinement, subjected to \r\nharsh and degrading high security conditions usually reserved \r\nfor prisoners accused or convicted of the most dangerous \r\ncrimes. The report also says detainees described abuse.\r\n Now I don't want to take the word of a outside group for \r\nit. I would like to look at what the Department itself has done \r\nand we are advised that the Department has apparently \r\napologized to 13 people for using the material witness statute \r\nto detain them.\r\n Among them, Brandon Mayfield, a lawyer in Seattle, he was--\r\nthe FBI detained Mr. Mayfield as a material witness but in \r\nreality, he--they did not believe that Mr. Mayfield was a \r\nwitness to anything. They believed he had participated in the \r\nMadrid terrorists bombings because they mistakenly linked his \r\nfingerprint to evidence found at the bombing site. Although Mr. \r\nMayfield hadn't traveled abroad for more than 10 years and \r\nalthough the Spanish authorities doubted the print matched and \r\nthe FBI picked up Mayfield as a material witness and held him \r\nfor 2 weeks without bringing any formal charges against him, \r\nthey ultimately released him and apologized.\r\n A couple of months ago, the Chairman himself forwarded a \r\nletter to the Attorney General that reiterated the questions \r\nthat I asked at the hearing, and to date I don't believe we \r\nhave got the statistics that we requested. This amendment----\r\n Chairman Sensenbrenner. Will the gentlewoman yield?\r\n Ms. Lofgren. I certainly will. I hope my statement is \r\nincorrect; that you're about to tell me so.\r\n Chairman Sensenbrenner. No. You've convinced me this is a \r\ngood amendment, and I'm willing to accept it.\r\n Ms. Lofgren. Thank you, Mr. Chairman. This amendment only \r\nasks for reports, and I appreciate your willingness to accept \r\nit.\r\n Chairman Sensenbrenner. The gentlewoman yield back?\r\n Ms. Lofgren. I do .\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentlewoman from California, Ms. \r\nLofgren. Those in favor will say aye. Opposed, no? The ayes \r\nappear to have it. The ayes have it. The amendment is agreed \r\nto. rollcall is requested.\r\n Those in favor of the Lofgren Amendment will, as your names \r\nare called answer aye; those opposed, no, and the clerk will \r\ncall the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. Aye.\r\n The Clerk. Mr. Hyde, aye. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Gallegly. Mr. Chairman, how am I recorded?\r\n The Clerk. Mr. Chairman, Mr. Gallegly is recorded as a no.\r\n Mr. Gallegly. I'm sorry, aye.\r\n The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. Aye.\r\n The Clerk. Mr. Chabot, aye. Mr. Lofgren? Lungren?\r\n [Laughter.]\r\n Mr. Lungren. Aye.\r\n The Clerk. Mr. Lungren, aye. Mr. Jenkins?\r\n Mr. Jenkins. Aye.\r\n The Clerk. Mr. Jenkins, aye. Mr. Cannon?\r\n Mr. Cannon Aye.\r\n The Clerk. Mr. Cannon, aye. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. Aye.\r\n The Clerk. Mr. Inglis, aye. Mr. Hostettler?\r\n Mr. Hostettler. Aye.\r\n The Clerk. Mr. Hostettler, aye. Mr. Green?\r\n Mr. Green. Aye.\r\n The Clerk. Mr. Green, aye. Mr. Keller?\r\n Mr. Keller. Aye.\r\n The Clerk. Mr. Keller, aye. Mr. Issa?\r\n Mr. Issa. Aye.\r\n The Clerk. Mr. Issa, aye. Mr. Flake?\r\n Mr. Flake. Aye.\r\n The Clerk. Mr. Flake, aye. Mr. Pence?\r\n Mr. Pence. Aye.\r\n The Clerk. Mr. Pence, aye. Mr. Forbes?\r\n Mr. Forbes. Aye.\r\n The Clerk. Mr. Forbes, aye. Mr. King?\r\n Mr. King. Aye.\r\n The Clerk. Mr. King, aye. Mr. Feeney?\r\n Mr. Feeney. Aye.\r\n The Clerk. Mr. Feeney, aye. Mr. Franks?\r\n [No response.]\r\n The Clerk. Mr. Gohmert?\r\n Mr. Gohmert. Aye.\r\n The Clerk. Mr. Gohmert, aye. Mr. Conyers?\r\n [No response.]\r\n The Clerk. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n [No response.]\r\n The Clerk. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n [No response.]\r\n The Clerk. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n [No response.]\r\n The Clerk. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. Aye.\r\n The Clerk. Mr. Chairman, aye.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? The gentleman from Maryland, Mr. Van Hollen?\r\n Mr. Van Hollen. Thank you, Mr. Chairman. Aye.\r\n The Clerk. Mr. Van Hollen, aye.\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters?\r\n Ms. Waters. Ms. Waters, aye.\r\n The Clerk. Ms. Waters, aye.\r\n Chairman Sensenbrenner. The gentleman from Michigan, Mr. \r\nConyers.\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye.\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Coble.\r\n Mr. Coble. Aye.\r\n The Clerk. Mr. Coble, aye.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nSmith.\r\n Mr. Smith. Mr. Chairman, I vote aye.\r\n The Clerk. Mr. Smith, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? The gentleman from Virginia, Mr. Goodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye.\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will call the report.\r\n The Clerk. Mr. Chairman, there are 34 ayes and 0 noes.\r\n Chairman Sensenbrenner. And the amendment is agreed to.\r\n Are there further amendments?\r\n Mr. Schiff. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff.\r\n Mr. Schiff. I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Schiff. And as an aside, I think rather than a Scott-\r\nLungren amendment, we need a Lofgren-Lungren amendment. This, \r\nhowever, is not that.\r\n Chairman Sensenbrenner. Okay. The clerk will report the \r\ncorrect amendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of \r\nCalifornia. At the end of the bill add the following new \r\nsection: Sec. ___. Electronic Surveillance Targets. Section \r\n105(c) of the Foreign Intelligence Surveillance Act of 1978 (50 \r\nU.S.C. 1805(c)) is amended--(1) in paragraph (1)(A)----\r\n Mr. Schiff. Mr. Chairman, I request consent to deem the \r\namendment as read.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Schiff. Mr. Chairman and members, some have claimed \r\nthat the PATRIOT Act authorizes so-called John Doe roving \r\nwiretaps, that is, orders that identify neither the specific \r\ntarget nor the specific location of the interception. My \r\ncolleague, Mr. Issa, offered a good amendment, which was agreed \r\nto by the Committee, to make sure that there was some level of \r\nascertainment of the location of the wiretap. My amendment goes \r\nto the individuals that are the targets of a roving wiretap.\r\n The Department of Justice maintains that even if the \r\nGovernment is not sure of the actual identify of the target of \r\na wiretap, FISA, nonetheless, requires the Government to \r\nprovide a description of the target prior to obtaining the \r\norder. And it may be in many cases--and I think the Department \r\nis making a very legitimate argument--that although the \r\nidentity is not known in the sense of knowing the name of the \r\nspecific individual, they have a specific individual in mind \r\nthat they are requesting the wiretap for. I think that's \r\nappropriate. That's an appropriate use of a John Doe wiretap.\r\n The concern that has been raised is that if the description \r\nis general of the individual and the individual who's the \r\ntarget changes when more information is learned, it was in the \r\nbeginning thought to be one person, later thought to be another \r\nperson, it should not be sufficient to use the same application \r\nfor a different individual target. And Attorney General \r\nAshcroft explained in a letter to Chairman Hatch that the \r\nGovernment cannot change the target of its surveillance under a \r\nwiretap order. It must, instead, apply to the FISA court for a \r\nnew order for the new target. That is, I think, the policy of \r\nthe Justice Department. This would make it a legal requirement, \r\nand I think it does nothing more than ratify what Attorney \r\nGeneral Ashcroft said is the practice of the Department, and \r\nthat is, in the case of a roving wiretap where the identity is \r\nnot known by name but the person has been identified, if \r\nsubsequently it's learned that the real target is someone else, \r\nyou should have to go back to the court identifying the other \r\nindividual.\r\n So this amendment would give some greater protection. It \r\nwould make statutory what the Attorney General has said is \r\nDepartment of Justice policy. And I think in combination with \r\nwhat Mr. Issa offered, which ensured the protections were there \r\nfor the targets that were not individuals, that were locations, \r\nthis goes to individuals and says, yes, it's all right if you \r\ndon't know the name, as long as you have a particular person in \r\nmind; if the particular person changes, you need to go back to \r\nget an application for the subsequent individual.\r\n I'd be happy to entertain any questions, but I would urge \r\nyour support of the amendment.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Schiff. Yes, Mr. Chairman.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nIssa.\r\n Mr. Issa. Mr. Chairman, I reluctantly rise in opposition, \r\nand I say that because I only--you know, this is somewhat new \r\nto me, your question. But looking at it, I believe we mostly \r\nhave taken care of this with the 10-day return if there's a \r\nchange in the communication that's being tracked. And what I'd \r\nlike to suggest, because we do have an ongoing work toward a \r\nfloor amendment on 206, is that I'd be happy to work with the \r\ngentleman on making sure that we're both comfortable at the \r\nfloor that this would be covered under the authority of the \r\njudge. And I think the gentleman from California would agree \r\nwith me that what we're trying to do is make sure that there's \r\na loop back when there's a change to the judge, because the \r\ntruth is that we're not--we don't want to be handling \r\nindividual cases, but we do want that branch of Government that \r\nnormally handles these to handle them. But I----\r\n Mr. Schiff. Would the gentleman yield?\r\n Mr. Issa. Yes, I would.\r\n Mr. Schiff. I appreciate that, that the majority often gets \r\nno more notice of amendments than the minority gets of the \r\nmajority amendments. And, you know, we looked at your amendment \r\nin good faith and supported it. My amendment is really, I \r\nthink, the counterpart that deals with the individuals, whereas \r\nyours dealt with the locations. It does nothing more that I can \r\nsee than codify what the Attorney General, the last Attorney \r\nGeneral has said is the Department policy; that if it becomes \r\nknown during the investigation that the tap requested on a \r\nspecific individual turns out not to be the right one, that \r\nthey can't simply apply that wiretap to someone else because \r\nthey don't have a name attached to it. They have to go back to \r\nthe court.\r\n So this codifies what I understand is the Attorney \r\nGeneral's policy, and if--you know, I'd be happy to work on \r\nlanguage later if you find some question about that, but----\r\n Mr. Issa. Reclaiming my time, I do expect that we should \r\ncontinue having this discussion through the final passage of \r\nthe bill. But what I want to point out is that you can't go to \r\na judge with a description of a white male and that is not \r\nsufficient, that there is, in fact, already protections to the \r\ncourt that you have to have described the individual with a \r\nconsiderable--a lot more detail than that. And I believe that \r\nto be true, and so I believe this is unnecessary----\r\n Mr. Schiff. May I----\r\n Mr. Issa.--but I would like to make sure that we both \r\nunderstand----\r\n Mr. Schiff. May I give the gentleman a specific example of \r\nwhat I'm talking about?\r\n Mr. Issa. Certainly.\r\n Mr. Schiff. Let's say that the target under the FISA \r\napplication says an Arab male between the ages of 22 and 27, \r\nliving at X address. It is later learned that the actual target \r\nis his roommate who also meets that description. The concern \r\nhas been raised is that you can give a sufficiently general \r\napplication and then apply it to someone else. The Attorney \r\nGeneral has said, no, we don't operate that way; if we find out \r\nit's the roommate and not the one that we were seeking the \r\nwarrant on, we'd go back to the court.\r\n So this, I think, codifies that practice of the Department \r\nand gives a level of comfort and security to the American \r\npeople to know that with this greater authority we gave with \r\nroving wiretaps that there is a limit to it, and that if we \r\nhave identified the wrong party, when we identify the right \r\nparty we go back for the application.\r\n Mr. Issa. Reclaiming my time, I again reiterate that my \r\npresent understanding and the reason that I don't support this \r\namendment at this time but do want to continue working with the \r\ngentleman is that I believe that the--that we are already close \r\nenough as a practical matter because a judge does have to say \r\nthat's good enough, that's not good enough a description. But I \r\ndo expect to be looking at 206 between now and the floor, and I \r\nabsolutely promise the gentleman that I will include in our \r\namendment if at that time we feel that we've gleaned something \r\nnew. But as of right now, I don't believe your description is \r\naccurate. I believe--it may be that they would come and say \r\nit's one of these two individuals and these two individuals \r\ncohabitate and, therefore, we're going after them. But it is \r\nnot--the judge's authority is already sufficient even if the \r\nJustice Department were to be less specific in their policy \r\nand, therefore, I believe this amendment is unnecessary. And I \r\nyield back.\r\n Chairman Sensenbrenner. The question is on----\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Delahunt.\r\n Mr. Delahunt. I just have some questions, and I'll yield to \r\nthe gentleman from California, the proponent of the amendment. \r\nBut maybe he could explain to members of the Committee, in a \r\nJohn Doe warrant what is the current practice when there is--\r\nthere emerges sufficient information to identify by name the \r\nindividual? What occurs then and does your amendment \r\naccommodate that new information?\r\n Mr. Schiff. Will the gentleman yield?\r\n Mr. Delahunt. I yield.\r\n Mr. Schiff. I thank the gentleman for yielding.\r\n Yes, the amendment does accommodate that situation. What \r\nSenator Hatch was concerned about, what he raised with the \r\nAttorney General was we don't want to have a situation where we \r\nhave a roving wiretap not specific to any individual that can \r\nbe moved from individual to individual. That's not the purpose \r\nof a roving wiretap. The purpose of a roving wiretap is when \r\nyou have a suspect and they use different phone facilities, you \r\ndon't want to have to go back to court for a different \r\napplication every time they change phones.\r\n It was not designed to say when we think it's one person \r\nbut it turns out to be another person, we want the wiretap to \r\nfollow whoever the latest suspect is. That was never the \r\npurpose of the roving wiretap. And the Attorney General told \r\nSenator Hatch that's not what we use it for, that's not how we \r\noperate. But, nonetheless, there is a concern out there among \r\nour constituents that there isn't a meaningful statutory \r\nlimitation on when a roving wiretap can rove, if it can rove \r\nfrom person to person.\r\n Now, I'm not hearing anyone on the other side of the aisle \r\nsaying that this amendment is any different from the policy of \r\nthe Justice Department. And if this is consistent, as I think \r\nit is, with the Attorney General's letter, there shouldn't be \r\nany opposition to this. And I appreciate the gentleman's offer, \r\nbut I see no more objection to this amendment than we had to \r\nthe gentleman's amendment, and I hope that my colleagues on the \r\nother side of the aisle will make the Justice Department \r\npractice, which is a solid one, the law of the land. And I \r\nwould hope also that my colleagues on the other side of the \r\naisle wouldn't be advocating that we deviate or depart from the \r\nJustice Department policy and somehow adopt a broader practice \r\nthat says when we've gone to court with a specific person in \r\nmind, even though we didn't know their name but we sufficiently \r\nidentified them, and we find out it's somebody else, we \r\nshouldn't have to go back to court. I don't think that would be \r\ngood policy. This amendment gives the country the confidence to \r\nknow there is a limit, and it's a limit consistent with what \r\nthe Attorney General has said.\r\n Mr. Issa. Would the gentleman from Massachusetts further \r\nyield?\r\n Mr. Delahunt. I yield to the gentleman.\r\n Mr. Issa. Thank you. And I truly respect the gentleman's \r\ndecision that he may feel that this isn't covered. I might \r\nsuggest that, in fact, if you--if you played fast and loose, \r\nwhich the Justice Department doesn't as a matter of policy, you \r\nwould also create a defect in the warrant. There is no question \r\nthat the law does not allow you to specify somebody and then \r\nsimply move it from people to people who might loosely fit that \r\ndescription. That would be a defect in the existing law that \r\nwould, in fact, make it a defect in the warrant.\r\n Mr. Schiff. Would the gentleman from----\r\n Mr. Delahunt. Reclaiming my time, I yield to----\r\n Mr. Schiff. I agree with the gentleman, but if that's the \r\ncase, then we are clearly codifying existing practice and \r\nexisting law, so there should be no objection. If you can't \r\nmove from person to person, then this provision that says you \r\ncan't move from person to person should be completely \r\nunobjectionable. And if it gives the American people greater \r\nconfidence that there are some limits, then there's no reason \r\nnot to provide that confidence. And I think we should. That's \r\nwhy we're here. And the gentleman's amendment, frankly, the \r\nsame argument could have been made against that, that, in fact, \r\nthis is the good practice of the Justice Department, it's \r\nalready required by the court so we don't need to do what the \r\ngentleman did. But the gentleman offered it because we ought to \r\nmake this very clear to the American people what the limits \r\nare. It's the same purpose behind my amendment, and I thank the \r\ngentleman for yielding.\r\n Mr. Delahunt. Reclaiming my time, I would encourage my \r\ncolleagues to support the amendment. All I've heard, to be \r\nperfectly candid, is the fact that it's unnecessary. I would \r\nsuggest it could be critical. Right now it's a matter of \r\nJustice Department policy. The law needs clarity on this, and I \r\nthink this is a positive amendment. And I would hope that the \r\ngentleman from California would support the amendment, and if \r\nthere are differences and clarification is needed, to do that \r\nfrom Committee to when the floor is managed, and I yield back.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nGohmert.\r\n Mr. Gohmert. Mr. Chairman, I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Gohmert. I have more of a problem than just redundancy \r\nor duplication. With regard to subsection (E), where it says \r\n``in the case where the target is an individual, that the order \r\nshall only apply to the particular individual identified or \r\ndescribed under subsection (c)(1)(A),'' the problem there is, \r\nit strikes me, if I'm on the court of appeals, as I once was, \r\nand I'm reviewing something that comes in, if there is a \r\nrecording of someone other than the target who is specified--\r\nand, let's face it, conversations are normally at least two-\r\nway, two-party situations. So you got someone who is not the \r\ntarget individual talking to somebody who is. They're talking \r\nabout a crime. Under this, the way I read it, I think you only \r\nget to record half of the conversation. And if it violates this \r\nprovision, if this were enacted into law, then some court's \r\nprobably going to throw out half the conversation and keep it \r\nfrom making sense because it violates this provision.\r\n So I see it creating a lot of problems for prosecution by \r\ncomplicating the matter. The way it stands now, they can record \r\nthe whole conversation. They can use it in litigation, if \r\nnecessary, in prosecution. And I hate to make--to tie the \r\nprosecutor's hands and keep him from recording and following up \r\non whoever is involved in the conversation.\r\n I yield to the gentleman from California.\r\n Mr. Issa. I thank the gentleman for yielding.\r\n I might also, in speaking directly to the example the \r\ngentleman from California gave for why you thought you should \r\nhave this, I might suggest that since--the reason for a roving \r\nwiretap being applied to a John Doe is that normally the John \r\nDoe is deliberately concealing their identity. We're looking \r\nfor, you know, Mohammed XYZ who chose to have an alias. And our \r\nbest belief is that we are--we are going after this person at \r\nthis place. That may, in fact, change, but the John Doe we're \r\ngoing after never changes.\r\n So, in your example, where we think that one of two people \r\nsitting in a residence is the John Doe we want, and it turns \r\nout to be the other John Doe, your--you would say you have to \r\ngo back again or you have a defect because you got the wrong \r\nJohn Doe between two of them. In fact----\r\n Mr. Gohmert. Would the gentleman yield?\r\n Mr. Issa. Just 1 second. Let me finish the thought. In \r\nfact, as it is now and with the existing policy of the Justice \r\nDepartment, they are still going after the description of the \r\nJohn Doe that they believe to be the terrorist, and, in fact, \r\nthat's where you would sort through the two at one location or \r\nten different cell phones as they keep dropping them to find \r\nthe real alias.\r\n We are dealing, in the case of these John Does, normally \r\nwith somebody who is trying to disguise who they are. And I \r\nyield back. The gentleman from Texas can----\r\n Mr. Gohmert. Thank you. Reclaiming my time, Mr. Chairman, I \r\nyield back.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman----\r\n Mr. Wexler. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Florida, Mr. \r\nWexler.\r\n Mr. Wexler. Thank you, Mr. Chairman. And I'd defer to Mr. \r\nSchiff.\r\n Mr. Schiff. I thank the gentleman for yielding.\r\n Very briefly, Mr. Chairman, in response to the two points \r\nmade by my colleague from Texas and my colleague from \r\nCalifornia, again, either my colleagues are arguing that the \r\nJustice Department should not maintain the policy of the \r\nAttorney General as expressed by Attorney General Ashcroft that \r\nthe Attorney General has restricted the DOJ from being able to \r\nshift from one subject of a warrant to a completely different \r\nsubject without having to go back to the court, I think that \r\nwould be a tremendous misstep. And to the degree that you argue \r\nagainst this amendment, you argue against the policy of the \r\nJustice Department.\r\n Second, the argument that you make that, well, somehow this \r\nwill exclude half the conversations, that argument could be \r\nmade with equal applicability to Mr. Issa's earlier amendment \r\nregarding the specificity of location. Well, what if the \r\nlocation is broader than described? Does that mean you can only \r\nlisten to half the conversation? Frankly, I think it's a \r\nstrained interpretation of both amendments, and I think a fair \r\nreading of this amendment is precisely what it appears to be, \r\nthat where the target is an individual, the order shall apply \r\nto that individual. And that is what the Justice Department has \r\nsaid they are doing. That is what they say they must do. And \r\nwe're making it clear in this amendment. But if my colleagues \r\nchoose to vote against the policy of the Justice Department as \r\nreflected in this amendment, then that seems to be the position \r\nthey're in. But I would hope that out of the same kind of \r\nbipartisan spirit that adopted Mr. Issa's amendment we would \r\nadopt this amendment as well. And I would hope we would not all \r\nfall in love with our own language so much that we can't find \r\nareas for improvement.\r\n And I'd yield back, Mr. Chairman.\r\n Chairman Sensenbrenner. Does the gentleman from Florida \r\nyield back?\r\n Mr. Wexler. Yes.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman from California, Mr. Schiff. Those in \r\nfavor will say aye? Opposed, no?\r\n The noes appear to have it----\r\n Mr. Schiff. Mr. Chairman, I request a recorded vote.\r\n Chairman Sensenbrenner. A recorded vote is ordered. Those \r\nin favor of the Schiff amendment will as your names are called \r\nanswer aye, those opposed no, and the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n [No response.]\r\n The Clerk. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? The gentleman from Virginia, Mr. Goodlatte.\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. The gentleman from Utah, Mr. \r\nCannon.\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 15 ayes and 22 noes.\r\n Chairman Sensenbrenner. The amendment is not agreed to.\r\n Are there further amendments? The gentleman from New York, \r\nMr. Nadler.\r\n Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at \r\nthe desk. It's offered by myself and Ms. Jackson Lee. That's \r\nhow you can identify it.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler \r\nand Ms. Jackson Lee. At the appropriate place in the bill, \r\ninsert the following: Sec. ___. Limitation on Roving Wiretaps \r\nunder Foreign Intelligence Surveillance Act of 1978. Section \r\n105(c) of the Foreign Intelligence Surveillance Act of 1978 (50 \r\nU.S.C. 1805(c)) is amended--(1) in paragraph----\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read.\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman from New York is \r\nrecognized for 5 minutes.\r\n Mr. Nadler. Thank you. Mr. Speaker, this--Mr. Speaker. Mr. \r\nChairman, this amendment, as the last one, deals with Section \r\n206, the roving wiretaps. Now, in the PATRIOT Act we provided \r\nfor roving wiretaps, that is, wiretaps that require that--you \r\nknow, where you identify the person and the wiretap applies to \r\nany site that that person might use. And that makes sense. It \r\ncatches up with technology so that if you get a wiretap for one \r\ncell phone and he switches cell phones or uses a pay phone, you \r\ncan just keep--you can follow him. You don't need a new \r\napplication.\r\n But then we did John Doe wiretaps where we say, okay, we \r\nknow that someone is using a certain phone or a certain set of \r\nphones in a certain neighborhood that we have reason to believe \r\nthat someone is for no good purposes but we don't know this \r\nfellow's name, so instead of getting a wiretap that follows a \r\nperson, we get a wiretap a--wiretaps at certain places, certain \r\nphones, certain electronic facilities, without a name on it. \r\nAnd that's also fine.\r\n The problem comes in when you combine those two and you \r\nhave a John Doe roving wiretap, and, in effect, that gives the \r\nFBI almost limitless power to have a wiretap application that \r\ndoesn't name an individual and doesn't name a place. So it's a \r\nroving wiretap with no specification of an individual, which \r\nmeans you can surveill the entire--an entire neighborhood. That \r\nis too much power. I am not sure that it was ever contemplated \r\nthat these two separate sections could be combined.\r\n What this amendment says, in effect, is you can have a \r\nroving wiretap without John--if you name the person. You can \r\nhave a John Doe wiretap, but it can't be roving. In other \r\nwords, you can wiretap either the person, wherever you think he \r\nmay be speaking, or the place, looking for someone whom you \r\ndon't know. But you can't combine them and say we're going to \r\nhave an application for an unknown person in general places. \r\nThat's almost like the British Writs of Assistance we objected \r\nto in 1760. It's a general writ. And American law cannot permit \r\ngeneral writs. There's nothing more--there's nothing more \r\noffensive to the Fourth Amendment, and, in fact, the only \r\nreason that the justification for the constitutionality of the \r\nroving wiretap provision of the PATRIOT Act in Section 206 was \r\nthat it required naming the particular--specificity of the \r\nparticular person. But if you remove the specificity of the \r\nperson and you have no specificity of the place, you have a \r\ngeneral warrant. I don't see how it's constitutional.\r\n Now, there may be circumstances where you want a roving \r\nwiretap, and that's fine. There may be circumstances where you \r\nwant a John Doe wiretap. That's fine. But this amendment says \r\nyou can have one or the other, but you can't combine them \r\nbecause then there's no limitation whatsoever.\r\n Mr. Conyers. Would the gentleman yield?\r\n Mr. Nadler. Yes, I'll yield.\r\n Mr. Conyers. What would happen if they do two separate \r\nones, one for each instance?\r\n Mr. Nadler. Well, that----\r\n Mr. Conyers. Would it violate----\r\n Mr. Nadler. Reclaiming my time, if you do it--but then you \r\nhave to--if you're doing two separate ones, in one you have to \r\nname a person, in the other you have to name a place, a \r\nspecific--or a set of things. And all this amendment says is \r\nyou have to name that. It says--one or the other. It says in \r\nparagraph (A), if the identity is unknown, in other words, it's \r\na John Doe wiretap, you have to specify the facilities and \r\nplaces. If it says--if any of the facilities or places are \r\nunknown, in other words, it's a roving wiretap, you have to \r\nidentify the target. You can't have an unknown target and an \r\nunknown place because then it's just general. And I can't \r\nimagine how we can allow general--general all-embracing \r\nwiretaps.\r\n So I urge the adoption of this amendment, and I yield back.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nIssa.\r\n Mr. Issa. Thank you, Mr. Chairman. And I do thank the \r\ngentleman from New York for looking at this, this complicated \r\nsubject, and trying to come up with very worthy amendments.\r\n In this case, I have to oppose this, and I have to oppose \r\nit specifically for what we're talking about, which is this--if \r\nwe were to adopt Mr. Nadler and Ms. Jackson Lee's amendment, \r\nwhat would happen is we would be able to follow a Member of \r\nCongress who's using a disposable cellular phone, a new one \r\nevery day, and we'd be able to deal with an al Qaeda operative \r\nwho is clandestine as long as he stayed at the same phone. But \r\nwe wouldn't be able to deal with that--that hidden person that \r\nis operating that we only know some things about because \r\nthey're trying to remain anonymous if they went from phone to \r\nphone. Here----\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Issa. Just a moment. Here and in Afghanistan and in \r\nIraq, we are using the techniques of knowing something about \r\nthe individual we're looking for, and we know something about \r\nthe one or two or three phones they may be using at a given \r\ntime and changing. Specifically when we envisioned this \r\nlegislation, we did envision the idea that you would not--you \r\nmight know who the person was in principle but not by their \r\ncorrect name, which is all a John Doe warrant often is, and we \r\nclearly saw them as using modern technology to go from phone to \r\nphone.\r\n With that, I'd yield for the question.\r\n Mr. Nadler. Well, I think the gentleman--excuse me. I think \r\nthe gentleman is a little incorrect. If you know the identity \r\nof the person, you know--it doesn't have to be his name. But if \r\nyou know that the person with some identifying characteristics \r\nis a suspected al Qaeda agent, and you don't know where--you \r\nknow, what facilities he's using, you'd get that as a roving \r\nwiretap with the identifying characteristics. But you have to \r\nhave some identifying characteristics. If you don't have any \r\nidentifying characteristics but you know where--where you think \r\nyou know, then you--then you get a John Doe wiretap.\r\n Mr. Issa. Reclaiming my time, I wish I could agree with you \r\nbecause that understanding needs to be gleaned. A John Doe is \r\nanytime you don't actually know the guy's correct name. And \r\noften you have doing--and from my civil days, doing business \r\nas, it's still a John Doe. You don't know for sure the correct \r\nlegal name, and so you still use John Doe.\r\n The fact is John Doe is about not having an exact, but you \r\ncan have a pretty darn good description. You can know the guy \r\nwas in Morocco last week and then he was here and he was there, \r\nand you can do an awful lot of describing and still be a John \r\nDoe.\r\n So with all due respect to the gentleman from New York, the \r\ncombination does exist. It exists every day in the pursuit of \r\nal Qaeda and other terrorist organizations in which you know a \r\ngreat deal, but you still don't have an exact, correct, \r\nverifiable name, and, by the way, they're using a new cell \r\nphone every day.\r\n With that, I'd yield back.\r\n Mr. Berman. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nBerman.\r\n Mr. Berman. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Berman. If the John Doe warrant--if this is--if the \r\nroving wiretap with the John Doe warrant is simply a way to get \r\nsomeone they have no--to give a blanket authorization for the \r\nFBI to surveill anyone at any place by having no description \r\nand no place, then I'm very supportive of the gentleman's \r\namendment. But I would like--I hear you say if the identity is \r\nunknown. What if it is a John Doe warrant because they don't \r\nknow the name, but they have very specific characteristics, \r\nenough to persuade a judge to issue a John Doe warrant, but \r\nthey don't know where he is? They have a clear sense of who \r\nthey want, but they don't know the person's name. If that is \r\ncalled a John Doe warrant, why--why do we want to limit their \r\nability to get a roving wiretap on this person whose identity \r\nthey have many descriptions of, and let's assume for a second \r\nthey're operating in good faith, why do we want to restrict \r\ntheir ability to surveill that person in part to get that \r\nperson's true identity and other information where they can--\r\nthey can make the case that that person with those \r\ncharacteristics is an agent of a foreign power? That's the one \r\nproblem I have with the word ``the identity is unknown.'' Does \r\nthe--are you saying if you have particular characteristics but \r\ndon't know the name, then your section doesn't apply?\r\n Mr. Nadler. If the gentleman would yield?\r\n Mr. Berman. Sure.\r\n Mr. Nadler. My intention here is not the simple fact--and I \r\nhope Mr. Issa will listen, too. We refer to it colloquially as \r\na John Doe amendment--as a John Doe wiretap. But what we're \r\ntalking about and what I intended--and I'm perfectly willing to \r\nentertain suggestions for making this clear--is what the \r\ngentleman was saying, some identifying characteristics. If you \r\nhave enough to know who it is, you don't know his name--his \r\nname is not the important thing, but there has to be some \r\nlimitation on the power so that it isn't a general writ. If \r\nyou're doing a roving wiretap and you know generally about the \r\nperson you're looking at and so you can describe it with some \r\nspecificity, even without the name, then that would be okay. \r\nBut that's what I'm trying to do in this amendment.\r\n Mr. Berman. Reclaiming my time, in other words, if there's \r\na practice going on or that could go on under this statute, \r\nwhich would essentially allow law enforcement to pocket \r\nauthorizations to surveill without--they could apply at any \r\ntime afterwards to anybody they wanted to based on at that \r\npoint thinking that person might--might be a terrorist, I share \r\nyour concern and think we ought to correct that, but not clear \r\nfor me from your amendment. I'll yield to somebody who's \r\nactually been in----\r\n Mr. Nadler. Would the gentleman yield for a moment? Would \r\nthe gentleman yield for a moment? Thank you.\r\n I am going to, without prejudice, withdraw this amendment \r\nnow and come back to it later or tomorrow with better--with \r\nlanguage that will go into that because----\r\n Chairman Sensenbrenner. The amendment is withdrawn.\r\n Are there further amendments?\r\n Mr. Watt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Watt.\r\n Mr. Watt. I have an amendment at the desk. It's the Watt \r\namendment, not the Watt-Waters amendment.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Watt. \r\nInsert at an appropriate place the following----\r\n Mr. Watt. Mr. Chairman, I ask unanimous consent----\r\n Chairman Sensenbrenner. The clerk will continue to read \r\nuntil we can see the----\r\n The Clerk. Sec.01. Warrants executed in districts other \r\nthan where issued. Whenever a warrant may be executed in a \r\ndistrict other than the district in which it was issued, a \r\nperson against whom it may be executed may seek to quash that \r\nwarrant in the district in which it is served, or, if the \r\nperson is a corporation, in any district in the State wherein \r\nthe corporation was incorporated.\r\n [The amendment of Mr. Watt follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman from North Carolina \r\nis recognized for 5 minutes.\r\n Mr. Watt. Thank you, Mr. Chairman.\r\n Mr. Chairman, I spent a lot of time in courts practicing \r\nlaw, 22 years, and I always had this philosophy that the courts \r\nand our court system should--should try to be as accessible to \r\nthe people who were being brought into contact with it as \r\npossible.\r\n Currently, Section 219 of the PATRIOT Act authorizes \r\nnationwide search warrants in terrorism-related investigations. \r\nSection 220 allows a single court in a single district to issue \r\na search warrant for electronic evidence that is valid \r\nnationally, essentially expanding Section 219 to standard \r\ncriminal investigation. I'm not sure that this result was \r\nintended, but that's certainly where we are at this point.\r\n Receiving an out-of-State search warrant under either \r\nsection may impose an insurmountable burden on the recipient if \r\nhe wishes to challenge the warrant. For example, Section 220 \r\nmakes it more difficult for large communication service \r\nproviders to seek modification of burdensome disclosure orders. \r\nInstead of being able to contest within their home Federal \r\ndistrict, they must challenge in whatever district throughout \r\nthe country the order originated.\r\n My amendment injects an element of fairness into the \r\nprocess for warrant recipients and their attorneys by allowing \r\nthem to challenge a warrant issued under Sections 219 and 220 \r\nif an individual in the district where the warrant was served, \r\nand if a corporation in the district where it was incorporated. \r\nAgain, I believe this amendment ensures openness and efficiency \r\nand more accessibility.\r\n The deck should not be stacked against those against whom \r\nthe Government has some suspicion, and it certainly shouldn't \r\nbe stacked against some electronic provider against whom they \r\nhave no suspicion, they're just trying to get evidence. I think \r\nthe Government should be bearing this burden. Here this \r\namendment nearly makes it possible for innocent targets to \r\nchallenge unfair or erroneous warrants in a venue that is \r\nconvenient to them. It imposes no harm on the Government. It \r\ndoes not undermine its investigative capacity, and I ask my \r\ncolleagues to support the amendment, and yield back----\r\n Ms. Lofgren. Could I ask a question before you yield back?\r\n Mr. Watt. Yes. I yield to the gentlelady.\r\n Ms. Lofgren. I thank you. The rationale for the section in \r\nthe Act meant a lot to me, frankly, because it relieved a \r\nburden on the courts in San Jose, California, that ended up \r\nissuing almost all of the warrants for--even though the case \r\nhad absolutely nothing to do with anything anywhere near Santa \r\nClara County.\r\n I do not object at all to what you're attempting to do, but \r\nI do want to clarify that this is at the discretion of those \r\nseeking to quash, and would not preclude quashing in the court \r\nwhere the warrant was issued. This would just be an addition to \r\nthat?\r\n Mr. Watt. Yes.\r\n Ms. Lofgren. Then I think this is perfectly sensible, and I \r\nthank the gentleman for yielding.\r\n Mr. Watt. I yield back the balance of my time.\r\n Chairman Sensenbrenner. Gentleman from Texas, Mr. Smith.\r\n Mr. Smith. Mr. Chairman, I oppose the amendment.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Smith. And, Mr. Chairman, let me say in opposing the \r\namendment, I don't oppose the gentleman from North Carolina's \r\ngoal, which I think is a worthy one, and what he hopes to \r\naccomplish with this amendment. However, my problem is, \r\nfrankly, that I don't----\r\n Mr. Watt. Mr. Chairman, I'm having trouble hearing Mr. \r\nSmith. I'm sorry.\r\n Mr. Smith. I'm sorry. Mr. Chairman, my problem is that I'm \r\nnot sure what problem it is that this amendment seeks to \r\naddress. It has long been the case that grand jury subpoenas \r\nare issued in the district of the investigation to gather \r\nrelevant information, and must be challenged there. The process \r\nhas worked for grand jury subpoenas for many years with no \r\napparent problems that I'm aware of. I'm also not aware of any \r\nevidence that the warrants issued in the district of the \r\ninvestigation cause any significant problems for keepers of \r\nelectronic records or has deterred them from challenging \r\nwarrants.\r\n On the other hand, the benefits in efficiency and cost \r\nsavings are obvious and have been substantial.\r\n Finally, this amendment would create dueling district \r\ncourts, which in some cases would operate in even different \r\ncircuits. If a search warrant for electronic surveillance is \r\nchallenged, the legality of the warrant should be determined by \r\na judge familiar with the individual investigations.\r\n In summary, Mr. Chairman, I'm not sure that we have any \r\nsignificant problems that need to be addressed by this \r\namendment, and second of all, I think we ought to avoid the \r\nsituation where you have really one district court almost \r\nbecoming an appellate court for another district court, and I \r\nknow the gentleman wouldn't want to see that occur either.\r\n Mr. Watt. Will the gentleman yield?\r\n Mr. Smith. And I'll be happy to yield to the gentleman from \r\nNorth Carolina.\r\n Mr. Watt. I thank the gentleman for yielding. First of all, \r\nif he doesn't think there is a problem, then he obviously \r\ndidn't hear what either I or Ms. Lofgren said.\r\n Mr. Smith. If the gentleman would yield, I did hear what \r\nthe gentlewoman from--reclaiming my time--what the gentlewoman \r\nfrom California said. but I was not persuaded that that was a \r\nproblem of such significance that it overrode the advantages of \r\nhaving one district court not only issue----\r\n Mr. Watt. Would my gentleman friend from Texas yield?\r\n Mr. Smith. Yes, I'm sorry, please.\r\n Mr. Watt. I thank the gentleman for yielding again. Those \r\nare two separate issues, and the second one I understand more \r\nthan I understand the first. Obviously, there is a problem \r\nbecause this is a remote--or the possibility of having to \r\ntravel all the way across the country to deal with something. \r\nThis is not a grand jury situation. I'm not trying to get \r\npeople into dueling----\r\n Mr. Smith. District courts?\r\n Mr. Watt.--dueling district courts. I presume that judges \r\nlooking at the same evidence are going to reach the same \r\nresult, but, you know, right now we're making this convenient \r\nfor the Government, but not convenient for the citizen, and the \r\ncitizen in this case is not even the person that's suspect of \r\nanything. In most cases it's a corporation that happens to be a \r\nservice provider.\r\n Mr. Smith. Reclaiming my time, I'm not sure I share the \r\ngentleman's confidence that district courts will not differ in \r\ntheir findings or differ in their conclusions, but in any case, \r\nI'll be happy to yield for the gentleman from Texas, Mr. \r\nGohmert----\r\n Mr. Gohmert. Thank you.\r\n Mr. Smith.--the balance of my time.\r\n Mr. Gohmert. I appreciate my gentleman friend from Texas \r\nhearing my voice way out here in the wilderness.\r\n Listen, I've dealt with this issue, and I'll tell you what, \r\nwhen you have a violent criminal that you issue a warrant on, \r\nand you set a high bond like a million dollar bond--and I have \r\nhad this happen--he's picked up in some other jurisdiction. He \r\ncomes in, he makes a contrite and lovely appearance before that \r\ntrial judge, and that trial judge says, well, he seems like a \r\nnice enough guy. He sets a low bond, and a violent criminal \r\ngets away and does violence on other people. It is not a good \r\nsituation.\r\n And from what I understand, this was originally argued at \r\nlength in the original PATRIOT Act, and that's why this wasn't \r\na part of it. In fact, this is the very kind of thing that will \r\nallow somebody to go to a judge that doesn't know the history, \r\ndoesn't know what happened, and then issue a warrant in the \r\nmiddle of the night to go kidnap a child at gunpoint, all \r\nbecause he wasn't privy to all the information the original \r\ntrial judge had.\r\n I think this is troublesome. I have seen it create problems \r\ndown the road simply because a well-meaning judge just doesn't \r\nhave all the facts. The original trial judge that issued the \r\nwarrant does, or he wouldn't have issued it, so I would urge \r\neveryone to vote against this amendment.\r\n Mr. Smith. Mr. Chairman, I thank the former judge from \r\nTexas for his comments, and I'll yield back.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Mr. Chairman, I think the only thing more \r\ntroublesome than the situations that have been alluded to would \r\nbe what would happen if this amendment is not agreed to. In a \r\ngrand jury you're at least doing one crime and you're looking \r\nfor evidence of that crime, so there's some natural limitation. \r\nIn this you can have--if you get served in California on a \r\nwarrant that is over broad and you have trouble complying with \r\nit, you got a choice, you can either comply with it at great \r\nhardship, or you can go to Virginia and argue about it.\r\n Now, you got to bring yourself and your lawyer and \r\neverybody else cross-country to argue the case. Why can't you \r\nargue it right there somewhere in California? I would hope we \r\nwould agree to this. Otherwise, you essentially have no right \r\nto contest a search warrant if you don't adopt this amendment.\r\n Mr. Delahunt. Would the gentleman yield?\r\n Mr. Scott. I'll yield.\r\n Mr. Delahunt. In response to my friend from the wilderness, \r\nI think he--and I read the amendment on its face, and it just \r\nsimply refers to warrants executed in districts. But this is \r\nnot an arrest warrant. What we're speaking to here is an \r\nelectronic search warrant, and I would ask the gentleman if \r\nthat might somehow influence his concerns that he so eloquently \r\nexpressed about that violent----\r\n Mr. Gohmert. Would the gentleman yield?\r\n Mr. Delahunt.--criminal down in Texas.\r\n Mr. Gohmert. If the gentleman would yield?\r\n Mr. Delahunt. I yield.\r\n Mr. Gohmert. I take it by your silence, yes. The same \r\nprinciples apply. The one that issued the warrants knows the \r\nfacts and knows them well enough to have found probable cause \r\nto issue a warrant. Otherwise he's the one or she is the one \r\nthat found that it complied with the constitutional \r\nrequirements, and that is the principal court of jurisdiction. \r\nAnd again, as I understand it, this was argued at length. The \r\nsame kind of principle would apply, let the judge that has the \r\nprincipal jurisdiction rule on it. Thank you.\r\n Mr. Delahunt. Reclaiming my time, the problem you've got \r\nthere----\r\n Mr. Gohmert. I yield back.\r\n Mr. Delahunt.--is that somebody's going to be \r\ninconvenienced, and if you've got an overly broad warrant and \r\ncannot possibly comply, you're in a fix because either you've \r\ngot to pluck yourself and your lawyer and all your files and \r\neverything cross-country to schedule something that may get \r\nunscheduled and rescheduled. You've got to come back another \r\ntime to argue it. If this isn't adopted, you essentially have \r\nno effective right to contest a search warrant that may be \r\noverly broad, may bankrupt your company to try to comply with \r\nit. If you can't get it amended, you can't get it fixed, so \r\nthat maybe you can provide most of the information, they'd be \r\nsatisfied with that, you just got to go bankrupt or something. \r\nI yield to the----\r\n Mr. Issa. I thank the gentleman. And briefly, I'd like to \r\nsay that although this may be well-intentioned, that there is a \r\nflaw even in the amendment, and that is that under the current \r\nlaw, for example, if you do business on the Internet, we don't \r\nhave to go to your home jurisdiction. In fact, if you do \r\nbusiness in the Internet and there's a portal that end up in my \r\ndistrict, I can file in my district.\r\n So when you start saying it would be overly burdensome, the \r\nbest example is in fact when we're executing a search warrant \r\non Internet material, we should not have to go to San Jose \r\nbecause the truth is, it's probably a Washington or an Alabama \r\nor whatever investigation. So this doesn't fix the problem that \r\nit says it fixes because we do often have corporations who in \r\nfact do not have the right to go to their home jurisdiction and \r\nsay, ``I'm going to answer it here,'' because they're doing \r\nbusiness in Timbuktu, and as a result, they get served in \r\nTimbuktu.\r\n So I believe that this amendment is so overly broad that \r\neven if we agreed with the principles--and I think Chairman \r\nSmith has said why the entire amendment is flawed--I also think \r\nthat we need to look----\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Delahunt. Would the gentleman yield?\r\n Mr. Watt. Reclaiming my time, and I yield to the gentlelady \r\nfrom California.\r\n Ms. Lofgren. This was discussed at some length. I mean not \r\ntremendous length when we enacted the PATRIOT Act, and it is \r\nfor electronic evidence only. And really, the rationale \r\nbehind--to allow the Government to seek a warrant either where \r\nthe case was initiated or where the warrant was to be executed \r\nto relieve the burden, the judicial burden on my district, \r\nwhere all of the warrants were sought because they were all \r\nbeing executed in Silicon Valley.\r\n What is being proposed here is just the other side of that \r\ncoin. These are all large companies. These are not, you know, \r\nJoe the ax murderer.\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n Ms. Lofgren. Mr. Chairman, I ask to strike the last word.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Lofgren. I can recall a handful of situations where the \r\nISPs, who are the recipients of these search warrants, have \r\ntaken the step of moving to quash. But the question in my mind \r\nis why should we inconvenience the ISP on those occasions when \r\nthey move to quash the warrant that's been issued? We should at \r\nleast grant them the same discretion.\r\n I don't think this is a huge deal, frankly, because I don't \r\nthink it happens that often, but I do think it's basic \r\nfairness. I appreciate the comments made about, you know, bad \r\nguys and robbers, but it really has absolutely nothing at all \r\nto do with this section of the Act, and never did, nor does it \r\nhave anything to do with this amendment.\r\n And I think this should be something where we could \r\nactually agree. I mean we've disagreed on many things, but this \r\nshould be something where we could agree to make a modification \r\nthat is modest yet sensible, and I am at a loss other than we \r\njust vote party line all the time, why we wouldn't agree on \r\nthis very sensible manner.\r\n I don't know if Mr. Watt would like to make any additions, \r\nor Mr Delahunt, who was asking to be recognized a minute ago.\r\n Mr. Watt. I thank the gentlelady for yielding. I basically \r\nhave said what I have to say about this. I mean I think it's a \r\nmatter of fairness. It's not about protecting anybody who has \r\ndone anything criminal because the people who are the subjects \r\nof these electronic warrants, search warrants, are really not \r\nthe terrorists, they just have the information. I just--I \r\nthought this was going to be a real non-controversial amendment \r\nmyself, and I can't imagine why we are so bent out of shape \r\nabout this unless--I mean it is true that the Government now \r\nhas the right to select the forum in which it gets its \r\nwarrants, but I'm not even trying to give any advantage in the \r\nlimited, very limited number of cases where a service provider \r\nis going to raise a question about a warrant. I'm not trying to \r\ngive any advantage to them other than the advantage of \r\nconvenience.\r\n I'm assuming that a judge who looks at a certain set of \r\nevidence in Virginia, a district court judge, is going to--the \r\njudge in California is going to look at and decide the same \r\nthing.\r\n Ms. Lofgren. If I may reclaim my time.\r\n Mr. Watt. I yield back.\r\n Ms. Lofgren. I mean this was--you know, I said it was my \r\ndistrict. It wasn't just my district, but most of these \r\nwarrants are executed either in Northern Virginia or in Silicon \r\nValley, and this was proposed, really as my recollection is, by \r\nthe department, really for reasons of judicial economy to \r\neliminate the burden on those judicial districts, and this \r\ndoesn't increase the burden on those judicial districts, and I \r\nthink if you take a look at the Act itself, Section 220, as \r\nwell as 219, it becomes very clear what we have done and how \r\nmodest is this amendment.\r\n Before yielding back I'd ask Mr. Delahunt if he wanted to \r\nmake his final comment?\r\n Mr. Delahunt. I just, again, I would just echo what the \r\ngentleman, the proponent of the amendment has said. I just \r\ndon't think it's a big deal. To me it's just a housekeeping \r\namendment that really closes the loop of what we did when we \r\npassed the PATRIOT Act out of this Committee. It's the other \r\nside of that. And it does come down to convenience as opposed \r\nto putting the burden on--as opposed to putting the burden on \r\nthe respondent. But if there's some rational argument that can \r\nbe made for opposing it, I haven't heard it yet, and I would \r\nhope that those who oppose it would reconsider.\r\n With that I'll yield back.\r\n Ms. Lofgren. And I'll yield back. Thank you, Mr. Chairman.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman from North Carolina, Mr. Watt. Those \r\nin favor will say aye.\r\n And those opposed, no.\r\n The noes appear to have it----\r\n Mr. Watt. Mr. Chairman, I request a recorded vote.\r\n Chairman Sensenbrenner. A recorded vote will be ordered. \r\nThose in favor of the Watt amendment will, as your names are \r\ncalled, answer aye, those opposed no, and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Oh, I'm sorry. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no. Ms. Sanchez?\r\n Ms. Sanchez. Pass.\r\n The Clerk. Ms. Sanchez, pass. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. No.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? Gentleman from North Carolina, Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. Gentleman from Virginia, Mr. \r\nGoodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. Gentlewoman from California, Ms. \r\nSanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 24 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nGentleman from California, Mr. Schiff.\r\n Mr. Schiff. Mr. Chairman, I have three amendments at the \r\ndesk which I'd like to offer en bloc.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendments.\r\n The Clerk. Amendments to H.R. 3199 offered by Mr. Schiff of \r\nCalifornia.\r\n Add at the end the following:\r\n Sec. 9. Predicate offenses.\r\n Section 2332b(g)(5)(B)(i) of Title 18, United States Code \r\nis amended: 1) by inserting 2339d, relating to----\r\n Mr. Schiff. Mr. Chairman, I'd request that the amendments \r\nbe deemed as read.\r\n Chairman Sensenbrenner. Without objection, so ordered, and \r\nwithout object, the amendments will be considered en bloc, and \r\nthe gentleman from California is recognized for 5 minutes.\r\n [The amendments of Mr. Schiff follow:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Schiff. Thank you, Mr. Chairman. I'll try to summarize \r\nthese very quickly. The first amendment amends the definition \r\nof a Federal crime of terrorism. Section 808 of the PATRIOT Act \r\nmade a number of important changes to the definition of \r\nterrorism to include sections of the criminal code which were \r\ninvolved with terrorist offenses. Since the passage of the \r\nPATRIOT bill there have been a number of new terrorism offenses \r\nthat should be made reference to and incorporated within the \r\ndefinition of ``terrorism.'' This particular amendment would \r\nadd offenses related to military type training from a foreign \r\nterrorist organization, and also offenses related to nuclear \r\nand weapons of mass destruction threats. These additional \r\nterrorism offenses were enacted via the 9\/11 Commission bill.\r\n A second amendment as part of the en bloc deals with civil \r\nforfeiture and trafficking in WMD technology or material, and \r\nthis amends the PATRIOT bill to include trafficking in nuclear, \r\nchem, bio or radiological weapons technology or material. \r\nSection 320 of the PATRIOT bill amended Federal law to specify \r\nthat the proceeds of foreign crimes specifically related to \r\ndrug trafficking are subject to forfeiture in the United \r\nStates, and my amendment would extend this concept to include \r\ntrafficking in nuclear, chem, bio or radiological weapons \r\ntechnology or material. It will allow us to go after the \r\nproceeds of criminal rings like AQ Khan.\r\n And finally, Mr. Chairman, I have an amendment to the \r\nomnibus Crime Control Provisions which add a number of \r\nprovisions to the wiretap authority, which add additional \r\nterrorism and serious offenses to ensure law enforcement has \r\nthe tools necessary to----\r\n Chairman Sensenbrenner. Will the gentleman yield?\r\n Mr. Schiff. Yes, Mr. Chairman.\r\n Chairman Sensenbrenner. First let me say I think the \r\ngentleman has made three very constructive additions, and I am \r\nprepared to accept these amendments en bloc. I would ask, \r\nhowever, unanimous consent that the staff be authorized to make \r\na technical correction to the third amendment offered by the \r\ngentleman from California, to put the sections that he had \r\ncited in the proper numerical order so that they appear at the \r\nproper place in the statute.\r\n Mr. Schiff. I thank the Chairman.\r\n Chairman Sensenbrenner. Without objection, the modification \r\nis agreed to. I thank the gentleman for yielding.\r\n Mr. Schiff. Mr. Chairman, I'd be delighted to yield back \r\nthe balance of my time.\r\n Chairman Sensenbrenner. The question is on the amendments--\r\n--\r\n Ms. Lofgren. Mr. Chairman?\r\n Chairman Sensenbrenner. Gentlewoman from California.\r\n Ms. Lofgren. I would like to ask a question of Mr. Schiff.\r\n Chairman Sensenbrenner. The gentlewoman strikes the last \r\nword----\r\n Ms. Lofgren. I do.\r\n Chairman Sensenbrenner.--and is recognized for 5 minutes\r\n Ms. Lofgren. On your amendment No. 64, I'm seeking to \r\nunderstand the impact of lines 6 and 7.\r\n Mr. Schiff. Yes. Lines 6 and 7 refer to what's existing \r\nalready in the PATRIOT bill. It doesn't add that, but because \r\nwe're adding all the language after that, and the previous \r\nlanguage in lines 3, 4 and 5, says strike the beginning of that \r\nsection.\r\n Ms. Lofgren. All right.\r\n Mr. Schiff. So we're not adding----\r\n Ms. Lofgren. Not adding anything.\r\n Mr. Schiff. We're not adding the ``fraud and misuse of \r\nvisas, permits.'' That was already there. We're adding what \r\nappears thereafter, violence at airports, biological agents and \r\ntoxins, nuclear and weapons of mass destruction threats, et \r\ncetera.\r\n Ms. Lofgren. So the renumbering argument I understand now, \r\nand I thank the Chairman for recognizing me and yield back.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendments offered by the gentleman from California, Mr. \r\nSchiff, en bloc. Those in favor will say aye.\r\n Opposed, no.\r\n The ayes appear to have it. The ayes have it, and the \r\namendments en bloc are agreed to.\r\n Are there further amendments? The gentlewoman from \r\nCalifornia, Ms. Lofgren.\r\n Ms. Lofgren. I have an amendment actually coming to the \r\ndesk.\r\n Chairman Sensenbrenner. The clerk will report the amendment \r\nonce it is received.\r\n The Clerk. Amendment to H.R. 3199 offered by Ms. Lofgren of \r\nCalifornia.\r\n At the end of the bill add the following:\r\n Section ___. Clarification of habeas corpus\r\n No act of Congress passed since the terrorist attacks of 9\/\r\n11, including USA PATRIOT Act, shall be construed to limit or \r\nsuspend the writ of habeas corpus.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n [The amendment of Ms. Lofgren follows:]\r\n \r\n \r\n Ms. Lofgren. Mr. Chairman, the writ of habeas corpus in \r\nArticle I, Section 9 says that the privilege of the writ of \r\nhabeas corpus shall not be suspended unless when in cases of \r\nrebellion or invasion the public safety may require it.\r\n As the Chairman will recall, I'm sure, the very first \r\nunpublic draft of the United States PATRIOT Act sent over from \r\nthe Department of Justice contained a chapter titled \r\n``Suspension of habeas corpus,'' and as we all know, the \r\nCongress declined to--with the Chairman's leadership--to accept \r\nthat provision, Yet many Americans are concerned that what has \r\nbeen done since 9\/11 has, through back-door methods, in \r\nessence, accomplished that same result.\r\n For example, the administration has claimed the power to \r\ndeclare suspected terrorists, including American citizens, \r\n``enemy combatants'' and to hold them indefinitely without \r\naccess to U.S. courts. Last year the Supreme Court disagreed \r\nand recognized that detainees have the right to file habeas \r\nwrits in Federal courts. Unfortunately, the Court left many \r\ndetails unanswered, and so many, including Mr. Jose Padilla, an \r\nAmerican citizen, are still being held indefinitely without \r\ncharge.\r\n In addition, it appears that the Department of Justice has \r\nused the material witness statute as a means to hold suspects \r\nwithout charge, which I addressed during the discussion of a \r\nprevious amendment.\r\n Habeas corpus is one of the foundations of American \r\nfreedom. It was first enshrined in the Magna Carta 700 years \r\nago and forms a key foundation for the U.S. Constitution. It \r\nprevents the Government from arresting a person and holding \r\nthem indefinitely without charge.\r\n Now, I realize that these issues are not squarely within \r\nthe Act itself, but I'm sure the members of the Committee will \r\nrecall the dialogue that I had with the witness from the \r\nJustice Department on this very issue. And I hope you'll recall \r\nthat when I asked the Justice Department, the Assistant \r\nAttorney General, whether or not he agreed that including a \r\nreaffirmation of the writ of habeas corpus in whatever we did \r\nin the PATRIOT Act would be a good idea, he did not disagree.\r\n I hope that we can clarify that nothing the Congress has \r\ndone has suspended the writ of habeas corpus. I think it may \r\nmake--some have guessed otherwise. I think it would clarify \r\nthat point in a way that would be very healthy for our Republic \r\nand very useful for the Judiciary, and I hope that this is \r\nsomething that we can do unanimously, reaffirming the great \r\nwrit that has kept America free for so many years.\r\n And with that, I would yield back the balance of my time.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. Mr. Chairman, I rise in opposition to this \r\namendment.\r\n Chairman Sensenbrenner. The gentleman's recognized for 5 \r\nminutes.\r\n Mr. Lungren. I mean this is so broad, no act of Congress \r\npassed since the terrorist act of 9\/11 should be construed to \r\nlimit or suspend the writ of habeas corpus. We have a bill that \r\nis being entertained by this Committee right now talking about \r\nstreamlining appellate procedures which affects the writ of \r\nhabeas corpus, and some would suggest it gets rid of some of \r\nthe excesses of habeas corpus that are, I would suggest, being \r\nobserved in certain parts of the country, particularly in the \r\nNinth Circuit at the present time. I just think----\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Lungren. Yes, I'll be happy to yield.\r\n Ms. Lofgren. I would ask unanimous consent to remove the \r\nwords ``limit or'' from the amendment.\r\n Mr. Lungren. I appreciate that. If the Chairman recognizes \r\nyou to----\r\n Mr. Chairman, she's asking unanimous consent to remove the \r\nwords----\r\n Ms. Lofgren. ``Limit or.''\r\n Mr. Lungren. ``Limit or.''\r\n Chairman Sensenbrenner. Without objection, the modification \r\nis agreed to.\r\n Mr. Lungren. And with that, I would remove my objection.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentlewoman from California, Ms. \r\nLungren--Ms. Lofgren. [Laughter.]\r\n I'm falling into the trap too.\r\n Those in favor will say aye.\r\n Opposed no.\r\n The ayes appear to have it. The ayes have it, and the \r\namendment is agreed to.\r\n Are there further amendments? The gentleman from \r\nCalifornia, Mr. Schiff.\r\n Mr. Schiff. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199 offered by Mr. Schiff of \r\nCalifornia.\r\n Page 6, line 7, strike ``(5)'' and insert ``(6)''.\r\n Page 6, after line 6, insert the following new paragraph:\r\n (5)(A) In the case of an order requiring the production of \r\ntangible things from a library or bookstore or medical records \r\nthat contain personally identifiable information and subject to \r\nsubparagraph (B), at the conclusion of an----\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read, and the gentleman from California is \r\nrecognized for 5 minutes.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Schiff. Thank you, Mr. Chairman. This amendment is \r\noffered by myself and also by Ms. Waters.\r\n This applies to Section 215 and again applies specifically \r\nto those records that Americans have the most concern about \r\npreserving their privacy, that is, library records or book \r\nstore records or medical records. And when this amendment very \r\nsimply does, is it says that--and it's very narrowly drawn--\r\nthat the--well, let me back up 1 second.\r\n The debate on the library records, I think has been a very \r\ndifficult one when you get into the weeds on what's involved. \r\nWhen you compare the grand jury process to the FISA process, in \r\nthe grand jury process you can get a grand jury subpoena for \r\nlibrary records or any other kind of record without prior court \r\napproval. However, there's no prohibition on telling the \r\nsubject of the grand jury subpoena that their records have been \r\nsubpoenaed. In the FISA context you have prior court approval, \r\nwhich is positive, but at the same time you have a statutory \r\nprohibition on ever disclosing the FISA order to the subject of \r\nthe order, and therefore, there's really no check on the \r\nissuance of that order.\r\n What my amendment does is it says that first the existing \r\nprohibition on disclosure of a FISA order for a medical record \r\nor a library record would be lifted after the investigation has \r\nbeen concluded; second, this would only apply to U.S. citizens. \r\nSo this does not extend to foreign nationals, or as Ms. Lofgren \r\npointed out to me earlier, even lawful permanent residents. It \r\nonly applies to U.S. citizens' library records, U.S. citizens' \r\nbook store records, and U.S. citizens' medical records.\r\n And third, the FBI would have the ability to petition the \r\ncourt for good cause shown, the FISA Court, that the non-\r\ndisclosure requirement should not be lifted in that particular \r\ncase.\r\n So this couldn't be drawn more narrowly. It only applies to \r\nlibrary records, book store records and medical records. It \r\nonly applies after the investigation has concluded, and it has \r\nthe additional safety valve of allowing the FBI to go to the \r\nFISA Court, and for good cause shown, continue to maintain the \r\nnon-disclosure order. So I can't imagine how it could be drawn \r\nmore narrowly. At the same time I think it protects American \r\ncitizens in their expectation of privacy with their medical \r\nrecords and their library records, and I hope that it may be \r\nthe one amendment in this area that the majority will find \r\nacceptable.\r\n I would be happy to yield back the balance of my time.\r\n Mr. Goodlatte. [Presiding] Who seeks time?\r\n The gentlewoman from Florida is recognized for 5 minutes.\r\n Ms. Wasserman Schultz. Thank you, Mr. Chairman. I support \r\nthe gentleman from California's amendment, and just wanted to \r\nmake a suggestion, depending on the will of the Committee, not \r\nnecessarily on this amendment, but on the one which he withdrew \r\nearlier as well, which is the same issue, that the Director of \r\nthe Federal Bureau of Investigation may or may not be the \r\nappropriate person to do the review because if you had the \r\nAttorney General do that review, as well as in the amendment \r\nearlier today, you would have both a law enforcement agent \r\ndoing the request for the tangible things like library books or \r\nmedical records, and the review by the Attorney General would \r\nbe done by a prosecutor.\r\n Simply because there is no judicial review of this whole \r\nprocess, it would be, I think, helpful to have both the \r\nprosecutor and the law enforcement agent be part of that \r\nprocess. That's just my thoughts.\r\n And I yield back.\r\n Mr. Goodlatte. Gentlewoman yields back. The gentleman from \r\nCalifornia is recognized for 5 minutes.\r\n Mr. Lungren. Strike the last word. If I could ask the \r\ngentleman from California, the author of this bill, a couple of \r\nquestions.\r\n You say at the conclusion of the investigation described in \r\nSubsection (A) of the individual, if there are a series of \r\ninvestigations, this being just one of them, but information \r\ngained in this go to the other investigation which is not yet \r\ncompleted, would they be required to disclose without going to \r\nthe court?\r\n Mr. Schiff. No. Will the gentleman yield?\r\n Mr. Lungren. Sure.\r\n Mr. Schiff. No, there's nothing that mandates disclosure \r\nhere. What it says is that we remove the legal prohibition of \r\ndisclosure so that--when you issue a grand jury subpoena now \r\nfor a business record, a library record or whatnot, there's no \r\nmandate that the library disclose the subpoena request or that \r\nthe business disclose it. In fact, they are heavily discouraged \r\nfrom doing it. But they're not legally prohibited from doing \r\nit, and this would remove the legal prohibition.\r\n In the circumstance you mentioned, either, (A) the \r\ninvestigation would be deemed to be ongoing because there's a \r\nrelated investigation ongoing, or (B) if there were any \r\nquestion about it and the investigative agency, the FBI, felt \r\nthat by disclosing to the American citizen that their library \r\nrecord had been requested, would it somehow impede the related \r\ninvestigation, they could go to court and that would be good \r\ncause for the court to extend the non-disclosure. So in the \r\ncircumstances you described, the Government would still be able \r\nto protect its investigation.\r\n Mr. Lungren. So the gentleman would remove the current \r\nstate of the law which obviously promotes non-disclosure. The \r\nassumption--the presumption that non-disclosure is necessary in \r\nthese foreign intelligence surveillance cases.\r\n Mr. Schiff. If the gentleman would yield, in very narrow \r\ncircumstances, first of all, vis-a-vis only U.S. citizens; \r\nsecond, under the whole range of records under 215, only vis-a-\r\nvis library, book store and medical records; and third, only \r\nwhere the Government decides that they can't show good cause--\r\n--\r\n Mr. Lungren. Right, but the premise is for the very use of \r\nthis section is that it's a case involving international \r\nterrorism or clandestine intelligence activity, and what you're \r\nsaying is if a U.S. citizen is involved in that, that \r\ndisclosure takes place.\r\n Mr. Schiff. Not that disclosure takes place, but that the \r\nprohibition on disclosure----\r\n Mr. Lungren. Prohibition against non-disclosure----\r\n Mr. Schiff. Prohibition against non-disclosure is removed, \r\nthat there's an affirmative obligation of the Government to \r\ntell the Court why it's necessary to continue non-disclosure to \r\nan American citizen that their library record was requested.\r\n Mr. Lungren. And so the gentleman's argument is that in an \r\ninternational terrorism case or clandestine intelligence \r\nactivity, we do make a distinction under your amendment between \r\na U.S. citizen and non U.S. citizen?\r\n Mr. Schiff. We do. I mean there are foreign nationals in \r\nthe United States who are here very legitimately and may be \r\nhere very illegitimately that we wouldn't want to protect this \r\nway, but what really is the broader picture I think is that the \r\nAmerican people are concerned were their library records being \r\nsubject of review. And I think that we can satisfy all of the \r\nlegitimate law enforcement interests and also protect the civil \r\nliberties interests of Americans to know that their reading \r\nhabits aren't being scrutinized, and that there isn't a \r\nprohibition on disclosure unless good cause has been shown for \r\nwhy that should continue after the investigation is concluded.\r\n And again, we put in so many safeguards here, American \r\ncitizen, only certain records, only after investigation is \r\ndone, and only when the Government chooses not to go to court \r\nor can't show good cause to continue the non-disclosure order.\r\n Mr. King. Would the gentleman yield?\r\n Mr. Schiff. Yes.\r\n Mr. King. I thank the gentleman. I'm reading here from the \r\namendment, and lines 6, 7 and 8, of an individual who is a \r\ncitizen of the United States, the non-disclosure requirements \r\nof this section shall cease to apply.\r\n Does your amendment, Mr. Schiff, presume that terrorists \r\nwill not be U.S. citizens in the fashion of the bombers in \r\nLondon that were British citizens? How does that play out \r\nwithin this--as you envision this language?\r\n Mr. Schiff. Will the gentleman yield?\r\n Mr. King. Yes.\r\n Mr. Schiff. I would assume that the circumstances in which \r\na U.S. citizen is the subject of a FISA order are far the \r\nexception and not the rule because the FISA rules are, No. 1, \r\ndirected at agents of foreign governments. But, no, it doesn't \r\nassume that it will never be the case that an American might be \r\ninvolved in terrorism, but it does say that where there is an \r\nAmerican who is the subject of an order to produce their \r\nlibrary record or the medical record or records which it's hard \r\nto imagine things being more personal and private, that at the \r\nconclusion of the investigation, when the investigation is done \r\nand the Government no longer has any good cause to refrain from \r\ninforming the person, presumably because the investigation \r\neither revealed that they were not properly the suspect or \r\nthey've already been convicted of an offence, then disclosure \r\nis not legally prohibited.\r\n The reason why I think this is important is that unlike the \r\ngrand jury process, there is no safeguard of ultimate \r\nnotification in this, and even with this very limited \r\namendment, the Director of the FBI and his designee can go and \r\nask for a continuing non-disclosure order.\r\n Mr. King. Would the gentleman yield again?\r\n Mr. Schiff. Yes.\r\n Mr. King. I thank the gentleman. But wouldn't this put a \r\nnon-citizen, someone who has either an unlawful presence or a \r\nlawful presence in the United States at a disadvantage as \r\nopposed to a United States citizen with regard to this type of \r\ninvestigation, and wouldn't that be a distinction that \r\ngenerally one wouldn't support as we approach this level of \r\njurisprudence on these cases?\r\n Mr. Schiff. You know, I think that we can and we do \r\ndistinguish between U.S. residents, citizens and lawful \r\nresidents, and foreign nationals. They have different \r\nexpectations of privacy. I frankly, if the gentleman wants to \r\nsuggest it, would be happy to include lawful residence in \r\naddition to U.S. citizens. I think that makes sense.\r\n But I think it also is perfectly appropriate to distinguish \r\nlevels of privacy expectation of foreign nationals in the \r\ncountry and of American citizens and lawful residents.\r\n Mr. King. I thank the gentleman.\r\n Mr. Franks. Would the gentleman yield?\r\n Mr. Goodlatte. The gentleman from California, Mr. Lungren, \r\ncontrols the time.\r\n Mr. Lungren. I'm trying to reclaim it, but I will yield to \r\nwhoever is asking for it right now.\r\n [Laughter.]\r\n Mr. Franks. Thank you, Mr. Lungren.\r\n I wanted to ask, in line 2, the library or book store, that \r\nseems to be potentially a fairly broad possibility. Would that \r\ninclude all libraries, book stores? Would it include things \r\nlike 7-11 perhaps? I mean are there any specific definitions \r\nthere? And with the same respect to personally identifiable \r\ninformation, what would be included in that and how would you \r\nspecify that?\r\n Mr. Schiff. If the gentleman will yield.\r\n Mr. Franks. I will yield.\r\n Mr. Schiff. If I were the FISA Court I wouldn't interpret \r\n7-11 as a book store unless they had an awfully good magazine \r\nrack, and even then. So I would not interpret it that way, but \r\nagain, when you look at the scope of business records that are \r\nsubject to the FISA Court, which is unlimited, we're talking \r\nabout a very narrow subsection which also is that narrow \r\nsubsection which is of most concern to the American people. \r\nIt's not an arbitrary choice, and it's because these records \r\nare of such concern to the American people, that I think \r\nthey're deserving of greater protection.\r\n Chairman Sensenbrenner. [Presiding] The time of the \r\ngentleman has expired.\r\n Mr. Delahunt. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Massachusetts, \r\nMr. Delahunt.\r\n Mr. Delahunt. I will yield to my friend from California, \r\nthe proponent of the amendment. I think he alluded to it, but I \r\nthink we've got to put some context here. I think we all \r\nprobably sense that among the American people there is a \r\nprofound concern about what Government is doing, what is \r\nhappening. And I think it's understandable that we have \r\nrecalibrated, if you will, the tensions between national \r\nsecurity on one hand and individual liberties and privacy on \r\nanother. But at the end of the day, in a healthy viable \r\ndemocracy, openness and transparency and respect for privacy is \r\nwhat it's about in terms of securing the confidence of the \r\npeople that there is a viable functioning democracy.\r\n I think the gentleman's amendment is a gesture towards \r\nrecalibrating, if you will, those interests, particularly \r\nprivacy interests, and the interest of transparency and \r\nunderstanding what the Government is doing. In a larger sense \r\nit's a gesture towards moving that back in a direction that I \r\nthink is important.\r\n With that, I'll yield to my friend from California. And I \r\napplaud him, and I think this is an amendment that is a \r\ngesture.\r\n Mr. Schiff. I thank the gentleman for yielding, and I think \r\nwhat this amendment really ought to speak to the American \r\npeople whose concern is that the Government might be looking or \r\ninterested in their reading habits or their medical history, \r\nthat I hope we're going to say to them, look, if the Government \r\nhas a legitimate reason to request of the FISA Court your \r\nlibrary record or your medical record, and you're an American \r\ncitizen, when the investigation is done, if there's no good \r\ncause not to inform you of it, we will inform you of it.\r\n And I would hope the America people at a minimum have a \r\nright to expect that, that when the investigation is done, if \r\nthey're exonerate or they're incarcerated, whatever the case \r\nmay be, and there's no further impact on the investigation, \r\nthere can be no good cause shown, that there shouldn't be a \r\nlegal bar of a library to tell their patron that their record \r\nwas requested. I hope we're not going to say to the American \r\npeople that even in these narrow circumstances we're not \r\nprepared to protect your privacy or provide any check.\r\n So I haven't heard opposition yet from my colleagues.\r\n Mr. Lungren. Would the gentleman yield?\r\n Mr. Schiff. I hear the struggle to find a reason to oppose, \r\nbut don't work so hard.\r\n Mr. Lungren. Well, you keep talking and----\r\n Mr. Schiff. I'll stop.\r\n Mr. Delahunt. Reclaiming my time, I would just note that \r\nthe Director of the Information Security Oversight Officer for \r\nthe Executive Branch has suggested that we are on a record pace \r\nin terms of classification. We are putting a veil over the \r\noperations of Government in this country, and we've got to \r\nstart to begin to reverse that trend. And again, this is noting \r\nof great significance, with all due respect, in the larger \r\nscheme of things. But I think it's a demonstration to the \r\nAmerican people that we recognize that there is a balance \r\nbetween national security and the values that we actually are \r\nfighting for in terms of dealing with the issues of terrorism.\r\n With that I yield back.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman from California, Mr. Schiff. Those in \r\nfavor will say aye.\r\n Opposed, no.\r\n The ayes appear to have it.\r\n Mr. Smith. We would like a recorded vote.\r\n Chairman Sensenbrenner. The gentleman from Texas asked for \r\na recorded vote. A recorded vote is ordered. Those in favor \r\nwill, as your names are called, answer aye, those opposed no, \r\nand the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n [No response.]\r\n The Clerk. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n [No response.]\r\n The Clerk. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n [No response.]\r\n The Clerk. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n [No response.]\r\n The Clerk. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n [No response.]\r\n The Clerk. Ms. Lofgren?\r\n [No response.]\r\n The Clerk. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? Gentleman from Indiana, Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no.\r\n Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Chairman Sensenbrenner. Gentleman from Florida, Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 13 ayes and 20 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments? The gentleman from Florida, Mr. \r\nWexler?\r\n Mr. Wexler. Thank you, Mr. Chairman. I will be quick. I \r\njust would like to follow up on the amendment that we spoke \r\nabout.\r\n Chairman Sensenbrenner. Is the gentleman offering an \r\namendment or moving to strike the last word?\r\n Mr. Wexler. Yes, amendment.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Wexler. The same amendment that was offered before.\r\n The Clerk. Amendment to H.R. 3199 offered by Mr. Wexler of \r\nFlorida.\r\n At the end of the bill add the following:\r\n Section ___. Preventing the revelation----\r\n Mr. Wexler. Move that we consider it as read, Mr. Chairman.\r\n Chairman Sensenbrenner. Without objection, so ordered. The \r\ngentleman is recognized for 5 minutes.\r\n [The amendment of Mr. Wexler follows:]\r\n \r\n \r\n Mr. Wexler. Mr. Chairman, I will be brief. We concluded the \r\nprevious debate. The gentleman from Iowa had suggested that the \r\nlanguage that was included in the amendment was either too \r\nbroad or nebulous. There was a discussion as to whether similar \r\nlanguage was actually contained in the U.S. Code, particularly \r\nin the criminal sections. In fact, there is precisely the same \r\nlanguage in the espionage section, and there are several \r\nsections that contain almost exactly the precise language.\r\n Mr. Chairman, I thought your remarks at the end of the \r\ndebate were exactly on point. This amendment would not in any \r\nway affect the investigation of or the conclusion or \r\nramifications of the investigation regarding Mr. Rove. The \r\nissue is really quite simple. The issue is current law, on its \r\nface, criminalizes the knowing disclosure of classified \r\ninformation that identifies a covert agent.\r\n What this amendment would adopt is to go a step further in \r\nthe protection of our CIA and intelligence agencies, to simply \r\nprovide in addition to that standard, that if a person provides \r\ninformation pertaining to the identity of an undercover \r\nintelligence officer, agent, informant, or source, that the \r\nperson has or should have reason to believe would be sufficient \r\nto identify that person, then it would be actionable under this \r\nsection of the PATRIOT Act.\r\n And I will conclude with that, Mr. Chairman, and ask that \r\nwe adopt this language to support the undercover work that our \r\nagents, our patriotic agents are doing.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Wexler. Yes.\r\n Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.\r\n Mr. King. Mr. Chairman, move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. I thank the gentleman, and as I understand this \r\nagreement here before this Committee--and I had made the \r\nstatement that the language, ``a person has or should have \r\nreason to believe,'' didn't exist elsewhere in the code. And my \r\ninformation that comes from our staff, that has twice now done \r\na word search through the entire U.S. Code, it comes back to--\r\nthis is my information. There are multiple uses of ``has reason \r\nto believe'' but there are no occurrences of ``should have \r\nreason to believe'' or ``has or should have reason to \r\nbelieve.'' So I would ask the gentleman to please produce that \r\nlanguage. If I am proven incorrect, I am certainly happy to \r\nmake that apology, and I would hope the gentleman would----\r\n Chairman Sensenbrenner. Will the gentleman from Iowa yield?\r\n Mr. King. I would yield.\r\n Chairman Sensenbrenner. During the interim since the \r\ngentleman from Florida offered this amendment previously, we \r\nhad the Office of Law Revision Counsel do a U.S. Code search \r\nusing the words ``should have reason to believe.'' The result \r\nof the search is zero documents found, zero returned. So the \r\nlanguage that the gentleman is proposing to insert appears \r\nnowhere else in the U.S. Code according to the Office of Law \r\nRevision Counsel. I yield back to the gentleman from Iowa.\r\n Mr. King. I thank the gentleman. I rest my case.\r\n Mr. Berman. Would the gentleman yield further?\r\n Mr. King. I would yield.\r\n Mr. Berman. Just like an attorney talking off the top of \r\nhis head, I cited a specific statute that I had bee involved \r\nwith back in the mid '80's. Your side actually listened to what \r\nI said and checked it out and found out that the section I was \r\nreferring to was repealed in 1988. How I let that happen, I \r\ndon't know, but----\r\n [Laughter.]\r\n Mr. Berman. I probably wasn't anticipating this day at the \r\ntime.\r\n Mr. Wexler. Would the gentleman yield?\r\n Mr. King. I have a--reclaiming my time, and I will in a \r\nmoment, Mr. Wexler. But I'd like to point out that the \r\ngentleman, Mr. Berman, has a memory that goes back specifically \r\nto specific language in 1988, and I suspect he has some current \r\nknowledge of the code as well that hasn't been divulged yet \r\ntoday.\r\n And I'd yield to the gentleman from Florida.\r\n Mr. Wexler. Not to belabor the point, there are several \r\nreferences in the statutes with respect to ``has reason to \r\nbelieve.'' If we're arguing over ``has'' or ``have,'' that's \r\nfine. It really is not relevant to the issue before the \r\nCommittee. And as a point, Mr. Berman is exactly correct, but \r\nironically, the language that was adopted in the amendment, as \r\nMr. Berman suggested, I would respectfully suggest is even more \r\nnebulous than the original language where it talks about if a \r\nperson is aware of a high probability of the existence of such \r\ncircumstance. That's actually current law.\r\n So all I'm trying to insert is language, as we have \r\ndiscussed, ``have reason to believe,'' ``has reason to \r\nbelieve,'' all of that doesn't get to the issue. The issue is, \r\nif a person provides information which that person reasonably \r\nwould believe would disclose the identity of a covert agent, do \r\nyou think it ought to be actionable, or do you think it ought \r\nto be just okay?\r\n Mr. King. Reclaiming my time. My statement was that the \r\nlanguage, ``should have reason to believe'' is vague, it's \r\nnebulous, and it puts an extra level of responsibility on an \r\nindividual, and it might go so far as to say that they should \r\nhave gone and done research, gotten an education, investigated. \r\nI think the language is too broad. That was my issue then. And \r\nthe gentleman from Florida, I would expect, given the \r\nagreement, that he would offer this, if that language wasn't \r\ncorrect, finding out that this language exists nowhere in the \r\ncode, I would hope the gentleman would withdraw his amendment.\r\n Mr. Wexler. I would request unanimous consent--it does \r\nexist once. But that's not the argument. I would be happy to \r\nask for unanimous consent to conform with the has reasoned to \r\nbelieve rather than have reason to believe, which, if I \r\nunderstand it correctly, is presented in the statutes on many \r\noccasions. Be happy to do that.\r\n Chairman Sensenbrenner. Is there objection to the unanimous \r\nconsent? Objection is heard.\r\n The question is on agreeing to the Wexler Amendment. Those \r\nin favor will say aye. Opposed, no.\r\n Noes appear to have it. The noes have it, and the amendment \r\nis not agreed to.\r\n For what purpose does the gentleman from Indiana, Mr. \r\nHostettler seek recognition.\r\n Mr. Hostettler. Mr. Chairman, I have an amendment at the \r\ndesk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. \r\nHostettler. Nothing in this bill shall be construed as \r\nrepealing or modifying any provision contained in Public Law \r\n109-72.\r\n [The amendment of Mr. Hostettler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentleman from Indiana is \r\nrecognized for 5 minutes.\r\n Mr. Hostettler. I thank the Chairman. Mr. Chairman, this \r\namendment would simply clarify and actually remove a \r\nprobability that an amendment offered earlier and accepted by \r\nthe Committee by Ms. Lofgren would not be able to repeal a \r\nprovision that was passed earlier this year in the Real-ID Act \r\nthat was authored by Rules Chairman David Dreier that would \r\nprevent criminal aliens from delaying their deportations \r\nthrough excessive appeals.\r\n My amendment would make sure that her amendment would not \r\nbe so construed to effectively repeal the Dreier Amendment. \r\nCriminal aliens should not get two bites of the apple, and the \r\nReal-ID Act provided their appeals in the U.S. Circuit Courts \r\nand not in U.S. District Courts with regard to a final order of \r\nremoval and it would not allow them to go initially to the \r\nDistrict Courts and then to circuit courts, but would rather \r\nrequire them to go immediately to the circuit courts. And with \r\nthat, I yield back the balance of my time.\r\n Mr. Berman. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nBerman.\r\n Mr. Berman. One, is it too late for me to reserve a point \r\nof order?\r\n Chairman Sensenbrenner. Yes, it is. The gentleman has--from \r\nIndiana has already been recognized.\r\n Mr. Berman. Yeah. I didn't--I mean I didn't see the \r\namendment.\r\n Chairman Sensenbrenner. The amendment was read in full.\r\n Mr. Berman. But if I will read this amendment, and you tell \r\nme what it's about. Nothing in this law shall be construed as \r\nrepealing or modifying any provision contained in Public Law \r\n109-72.\r\n I may remember something that was in the law in 1980, but I \r\ndon't remember it by the number of the bill.\r\n Chairman Sensenbrenner. If the gentleman will yield. That \r\nis the Iraq Supplemental Appropriation bill.\r\n Mr. Berman. Oh, no. Based on the description of the \r\ngentleman in describing his amendment, I understand the \r\namendment. Let me ask for an advisory opinion.\r\n Do you give advisory opinions?\r\n Chairman Sensenbrenner. The chair is not authorized to do \r\nso.\r\n Mr. Berman. Would provisions that affect the immigration \r\nlaw that were not germane to this bill now become germane to \r\nthis bill if this amendment were to pass?\r\n Chairman Sensenbrenner. The chair is not in the business of \r\nproviding advisory opinions.\r\n Mr. Berman. How about speculative musings?\r\n [Laughter.]\r\n Chairman Sensenbrenner. The chair plays by the rules, and I \r\ndon't see any section of the Rules of the House or of the \r\nCommittee with the heading speculation.\r\n Mr. Berman. Could, on my time, the gentleman once again \r\ndescribe exactly what provision of the law so I can prepare the \r\nmany amendments I think would be good on the issue of \r\nimmigration.\r\n Mr. Hostettler. If the gentleman will yield?\r\n Mr. Berman. And exactly know where I'll have germane \r\nprovision?\r\n Mr. Hostettler. If the gentleman would yield?\r\n Mr. Berman. Yes. Oh, sure.\r\n Mr. Hostettler. To the extent that the amendment offered by \r\nMs. Lofgren affected and was allowed to be offered to affect \r\nimmigration law, my amendment would likewise potentially affect \r\nimmigration law.\r\n Mr. Berman. Ms. Lofgren offered an amendment on suspension \r\nof writ of habeas corpus.\r\n Mr. Hostettler. And my amendment says that nothing shall be \r\nconstrued as repealing or modifying any provision contained in \r\nPublic Law 109-72.\r\n Mr. Berman. Well, I guess we have to bring a case or \r\ncontroversy before the Committee. And thank you.\r\n Ms. Lofgren. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Lofgren.\r\n Ms. Lofgren. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Lofgren. Not having the Iraq appropriations bill handy, \r\nI will rely on my memory, but there was concern, at least on my \r\npart, when that measure was considered that there was an \r\nimpingement on the writ of habeas corpus.\r\n But I don't think there was a suspension of habeas corpus. \r\nAnd I think this goes to the point made by my colleague from \r\nCalifornia, Mr. Lungren, earlier, which relates to the ability \r\nof the Congress to prescribe procedural limitations on the \r\nexercise of the writ of habeas corpus that falls short of the \r\naction that the Congress needs to take in Article I, Section 9, \r\nto suspend the writ of habeas corpus only in cases of rebellion \r\nor invasion when the public safety may require it.\r\n So unless the gentleman from Indiana is suggesting that the \r\nCongress has suspended habeas corpus in its prior action, I \r\nwould suggest that this amendment should be rejected.\r\n And I really do think that, you know, although this was \r\nadopted because no one wants to say that we're suspending \r\nhabeas corpus, there is a very serious issue here, and the--Mr. \r\nChairman, the Committee is not in order.\r\n Chairman Sensenbrenner. The gentlewoman is correct. The \r\nCommittee will be in order. Conversations will cease.\r\n Ms. Lofgren. Thank you, Mr. Chairman. I do think that when \r\nwe are discussing the suspension of the writ of habeas corpus, \r\nwe should pay attention. And Mr. Hostettler seems to be \r\nsuggesting, by his amendment, that, in fact, the Congress did \r\nact, as only the Congress may, as we learned from President \r\nLincoln's abortive attempt to suspend the writ through \r\nexecutive order, that the Congress has acted in the Iraq \r\nappropriations bill, to suspend the writ of habeas corpus.\r\n I think that is not the case, but if this amendment is \r\npassed, I think it affirms that, in fact, the Congress did \r\nsuspend the writ of habeas corpus, unknowingly I would assume \r\non the part of some.\r\n So I think that this is not a harmless amendment. It really \r\nhas great import for the actions and of the Congress, and as a \r\nprecedent for the nation. As we know, the Congress has never, \r\nin the entire history of the United States, acted to suspend \r\nthe writ of habeas corpus. And I would argue that if, in fact, \r\nMr. Hostettler is suggesting we did so in Public Law 109-72 \r\nthat we have not met the predicate that is outlined in Article \r\nI, Section 9 because we are not in the situation of rebellion \r\nor invasion that is required--that the Congress is required to \r\nfind before deciding that public safety requires the suspension \r\nof the writ.\r\n So I would--I think this is very serious business. I \r\nstrongly urge the Committee to reject Mr. Hostettler's \r\namendment, and I hope that all of us can go home to our \r\ndistricts this weekend and let them know that we have not, for \r\nthe first time in the proud history of the nation, acted to \r\nsuspend the great writ in this Congress.\r\n And with that, I would yield back the balance of my time.\r\n Chairman Sensenbrenner. The gentleman from Indiana, Mr. \r\nHostettler?\r\n Mr. Hostettler. Mr. Chairman, I withdraw my amendment and I \r\nmove to reconsider the amendment offered by Ms. Lofgren.\r\n Chairman Sensenbrenner. The question is shall the vote by \r\nwhich the Lofgren Amendment was agreed to be reconsidered. \r\nThose in favor will say aye. Opposed, no.\r\n The noes appear to have it.\r\n A rollcall will be ordered.\r\n The question is shall the vote by which the Lofgren \r\nAmendment was agreed to be reconsidered? Those in favor will as \r\nyour names are called answer aye. Those opposed, no.\r\n Mr. Nadler. Mr. Chairman, parliamentary inquiry.\r\n Chairman Sensenbrenner. The chair has already put the \r\nquestion to the clerk to call the roll.\r\n Mr. Nadler. Question on the question.\r\n Chairman Sensenbrenner. It went--once the question is put, \r\nthen the rollcall begins.\r\n Mr. Nadler. Could I ask which amendment we're talking \r\nabout? That's all I want to know.\r\n Chairman Sensenbrenner. This the Lofgren Amendment relative \r\nto habeas corpus; is the one the gentleman made his motion to \r\nreconsider. Those in favor of reconsidering the vote by which \r\nthe amendment was agreed to will as your names are called \r\nanswer aye. Those opposed, no, and the clerk will call the \r\nrole.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. Aye.\r\n The Clerk. Mr. Coble, aye. Mr. Smith?\r\n Mr. Smith. Aye.\r\n The Clerk. Mr. Smith, aye. Mr. Gallegly?\r\n Mr. Gallegly. Aye.\r\n The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye. Mr. Chabot?\r\n Mr. Chabot. Aye.\r\n The Clerk. Mr. Chabot, aye. Mr. Lungren?\r\n Mr. Lungren. Aye.\r\n The Clerk. Mr. Lungren, aye. Mr. Jenkins?\r\n Mr. Jenkins. Aye.\r\n The Clerk. Mr. Jenkins, aye. Mr. Cannon?\r\n Mr. Cannon Aye.\r\n The Clerk. Mr. Cannon, aye. Mr. Bachus?\r\n Mr. Bachus. Aye.\r\n The Clerk. Mr. Bachus, aye. Mr. Inglis?\r\n [No response.]\r\n The Clerk. Mr. Hostettler?\r\n Mr. Hostettler. Aye.\r\n The Clerk. Mr. Hostettler, aye. Mr. Green?\r\n Mr. Green. Aye.\r\n The Clerk. Mr. Green, aye. Mr. Keller?\r\n Mr. Keller. Aye.\r\n The Clerk. Mr. Keller, aye. Mr. Issa?\r\n Mr. Issa. Aye.\r\n The Clerk. Mr. Issa, aye. Mr. Flake?\r\n Mr. Flake. Aye.\r\n The Clerk. Mr. Flake, aye. Mr. Pence?\r\n Mr. Pence. Aye.\r\n The Clerk. Mr. Pence, aye. Mr. Forbes?\r\n Mr. Forbes. Aye.\r\n The Clerk. Mr. Forbes, aye. Mr. King?\r\n Mr. King. Aye.\r\n The Clerk. Mr. King, aye. Mr. Feeney?\r\n Mr. Feeney. Aye.\r\n The Clerk. Mr. Feeney, aye. Mr. Franks?\r\n Mr. Franks. Aye.\r\n The Clerk. Mr. Franks, aye. Mr. Gohmert?\r\n Mr. Gohmert. Aye.\r\n The Clerk. Mr. Gohmert, aye. Mr. Conyers?\r\n Mr. Conyers. No.\r\n The Clerk. Mr. Conyers, no. Mr. Berman?\r\n Mr. Berman. No. .\r\n The Clerk. Mr. Berman, no. Mr. Boucher?\r\n Mr. Boucher. No.\r\n The Clerk. Mr. Boucher, no. Mr. Nadler?\r\n Mr. Nadler. No..\r\n The Clerk. Mr. Nadler, no.. Mr. Scott?\r\n Mr. Scott. No.\r\n The Clerk. Mr. Scott, no. Mr. Watt?\r\n Mr. Watt. No.\r\n The Clerk. Mr. Watt, no. Ms Lofgren?\r\n Ms. Lofgren. No.\r\n The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. No.\r\n The Clerk. Ms. Waters, no. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. No.\r\n The Clerk. Mr. Delahunt, no. Mr. Wexler.\r\n Mr. Wexler. No.\r\n The Clerk. Mr. Wexler, no. Mr. Weiner?\r\n Mr. Weiner. No.\r\n The Clerk. Mr. Weiner, no. Mr. Schiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no. Ms. Sanchez?\r\n Ms. Sanchez. No.\r\n The Clerk. Ms. Sanchez, no. Mr. Van Hollen?\r\n Mr. Van Hollen. No.\r\n The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. No.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. Aye.\r\n The Clerk. Mr. Chairman, aye.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote. The gentleman from Illinois, Mr. Hyde?\r\n Mr. Hyde. Aye.\r\n The Clerk. Mr. Hyde, aye.\r\n Chairman Sensenbrenner. The gentleman from South Carolina, \r\nMr. Inglis?\r\n Mr. Inglis. Aye.\r\n The Clerk. Mr. Inglis, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 23 ayes and 15 noes.\r\n Chairman Sensenbrenner. And the motion to reconsider is \r\nagreed to. The question now occurs on agreeing to the amendment \r\noffered by the gentlewoman from California, Ms. Lofgren, \r\nrelative to habeas corpus.\r\n Those in favor will say aye. Opposed, no?\r\n The noes appear to have it. The noes have it.\r\n Ms. Lofgren. Recorded vote please, Mr. Chairman.\r\n Chairman Sensenbrenner. Recorded vote will be ordered. \r\nThose in favor of the Lofgren Amendment will as your names are \r\ncalled answer aye. Those opposed, no, and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No .\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n Mr. Boucher. Aye.\r\n The Clerk. Mr. Boucher, aye. Mr. Nadler?\r\n Mr. Nadler. Aye..\r\n The Clerk. Mr. Nadler, aye.. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler.\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n [No response.]\r\n The Clerk. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote. The gentleman from California, Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nWeiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments? Are there further amendments? The \r\ngentleman from California, Mr. Schiff.\r\n Mr. Schiff. Mr. Chairman, I have an amendment numbered 82 \r\nat the desk.\r\n Chairman Sensenbrenner. The clerk will report amendment \r\nnumber 82.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of \r\nCalifornia. At the end of the bill, add the following new \r\nsection: Section. Obligation of All Amounts in Crime Victims \r\nFunds. Section 1402 of the Victims of Crime Act of 1984, 42 \r\nU.S.C. 10601, is amended by adding at the end the following----\r\n Mr. Schiff. Mr. Chairman, I'd request that the amendment be \r\ndeemed as read.\r\n Mr. Smith. Mr. Chairman, I reserve a point of order.\r\n Chairman Sensenbrenner. Well, a point of order is reserved \r\nby the gentleman from Texas. Without objection, the amendment \r\nis considered as read, subject to the point of order reserved, \r\nand the gentleman from California is recognized for 5 minutes.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Schiff. I thank the Chairman. Section 621 of the \r\nPATRIOT Act allow the Department of Justice to establish a $50 \r\nmillion anti-terrorism emergency reserve for supplemental \r\ngrants to compensate and assist victims of terrorism or mass \r\nviolence.\r\n It also removed the otherwise applicable caps on the \r\namounts transferred to the Victims of Crime Act Fund in \r\nresponse to the terrorist acts of September 11th.\r\n The Victims of Crime Act Fund is an important part of the \r\neffort to aid those affected by terrorism and crime more \r\ngenerally. The trust fund is composed of criminal fines, \r\nforfeited bail bonds, penalty fees and special assessments \r\ncollected by U.S. Attorneys offices, courts, and the Federal \r\nBureau of Prisons.\r\n These dollars come from Federal criminals. They do not come \r\nfrom taxpayers.\r\n Currently, this fund is the only Federal program that \r\nprovides support services to victims of all types of crimes.\r\n The PATRIOT bill removed some of the caps, but not all of \r\nthe caps. This would remove the final remaining caps so that \r\nmore of this funding could be distributed. This is very similar \r\nto a measure, bipartisan bill, introduced by Rob Simmons of \r\nConnecticut that as 23 bipartisan co-sponsors. It is plainly \r\ngermane to the provisions that were amended in the PATRIOT bill \r\nthat lifted some of the caps. This lifts the remaining caps. \r\nAnd it assures that more of this money will go out to victims \r\nmore expeditiously.\r\n In the last couple years, the amount of money available to \r\nstates has been capped at $500 million despite collections of \r\nover a billion dollars. So this I think is a completion of a \r\npartial effort made in the PATRIOT bill that will more speedily \r\nprovide support to victims of other terrorist acts other than \r\nSeptember 11th, as well as the victims of crime generally. And \r\nI'd be happy to yield back the balance of my time.\r\n Chairman Sensenbrenner. Does the gentleman from Texas \r\ninsist on his point of order?\r\n Mr. Smith. Mr. Chairman, I do insist on a point of order.\r\n Chairman Sensenbrenner. The gentleman will state his point \r\nof order.\r\n Mr. Smith. Mike is working here. Okay.\r\n Mr. Chairman, the reason I feel that this particular \r\namendment is non-germane is simply because the subject, which \r\nis crime victims fund, while it's in the PATRIOT Act, is not \r\nunder any of the provisions that we are considering here today. \r\nAnd under Rule 16 of the House Rules, amendments that differ in \r\nsubject from the provisions under consideration are not \r\nconsidered germane. And for that reason, I would insist on my \r\npoint of order.\r\n Mr. Schiff. Mr. Chairman, may I be heard on the point of \r\norder? Will the gentleman----\r\n Chairman Sensenbrenner. The gentleman from California.\r\n Mr. Schiff. This is a reauthorization of the PATRIOT bill. \r\nAnd I know that the subject of the base bill pertains to \r\ncertain of the PATRIOT bill provisions, but this crime victims \r\nfund was amended by the PATRIOT Act that we are in effect \r\nreauthorizing today with this legislation.\r\n This is the PATRIOT and Intelligence Reform Reauthorization \r\nAct of 2005. And unless the gentleman has any objection to the \r\nmerits, considering it it amends the same section and in the \r\nsame fashion in terms of lifting caps. I think it is both \r\ngermane and good policy supported by 23 members of the House, \r\nboth Democrats and Republicans.\r\n Chairman Sensenbrenner. The Chair is prepared to rule. Line \r\n3 of the amendment offered by the gentleman from California, \r\nMr. Schiff, expressly states that the Victims of Crime Act of \r\n1984 is amended by language in his amendment. The Victims of \r\nCrime Act is not the subject matter of the bill before us that \r\nrelates to the PATRIOT Act, and, as a result, the gentleman \r\nfrom Texas' point of order is sustained.\r\n Are there other amendments? The gentleman from North \r\nCarolina, Mr. Watt.\r\n Mr. Watt. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Watt. Watt-Waters.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Watt and \r\nMs. Waters. Strike Subsection C of Section 8, and insert the \r\nfollowing: (C), non-disclosure. Section 501(d) of the Foreign \r\nIntelligence Surveillance Act of 1978, 50 U.S.C. 1861(d) is----\r\n Mr. Watt. Mr. Chairman, I ask unanimous consent the \r\namendment be considered as read.\r\n Chairman Sensenbrenner. Without objection, so ordered. The \r\ngentleman is recognized for 5 minutes.\r\n [The amendment of Mr. Watt and Ms. Waters follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Watt. Thank you, Mr. Chairman. This amendment deals \r\nwith Section 215 of the PATRIOT Act, which the Chairman's mark \r\nimproves, and we're trying to improve it further. Section 215 \r\nexpanded the FBI's authority to obtain business records, \r\nincluding records from libraries and the bookstores under the \r\nForeign Intelligence Surveillance Act.\r\n For example, the Washington Post reported that the FBI \r\nagents--that FBI agents asked libraries for a list of everyone \r\nwho checked out a book on Osama bin-Laden. Any person, any \r\nchild simply trying to educate themselves about the attacks of \r\nSeptember 11 could become a target of such an inquiry. Not only \r\nmay American citizens become unsuspecting targets of a Section \r\n215 order, those receiving the order, including bookstores and \r\nlibraries, are required to comply and may not disclose the \r\nspecifics or contents of the order.\r\n The Chairman's bill makes some improvements. It amends \r\nSection 215 to allow the recipient of the order to challenge \r\nthe order and clarifies that the recipient may consult with \r\ncounsel or those necessary to comply with the order, and sets \r\nup a judicial review process and standards for issuing the \r\norder. And Mr. Flake's amendment earlier dealt with that \r\nconsultation process, and improved on that.\r\n My amendment would make additional and necessary \r\nimprovements by doing two additional things. First, it would \r\nrequire the government to apply for a gag order establishing \r\nwhy it is necessary for the recipient of an order and their \r\ncounsel to be prohibited from divulging the existence or \r\ncontent of the order.\r\n In instances where the government believes a gag order is \r\nneeded, the burden is placed where it should be--on the \r\ngovernment.\r\n If the government can establish that disclosure of such \r\ninformation might tip off possible terrorist suspects that they \r\nare under investigation or if officers believe disclosure would \r\nendanger someone, the government could apply for a gag order.\r\n Second, my amendment places a 180-day time limit on the gag \r\norder, which is renewable upon a showing that the order remains \r\nnecessary.\r\n This would allow the government to obtain necessary \r\ninformation to combat terrorism while providing transparency to \r\nthe public without jeopardizing national security.\r\n Mr. Watt. The government should not and will not, if my \r\namendment is accepted, be able to completely shield from public \r\nview its use of this powerful tool. The public must be able to \r\nspeak out when abuses occur and government secrecy all too \r\noften leads to government abuse.\r\n This amendment helps protect us from that kind of abuse. I \r\nask my colleagues to support the amendment, and I yield back \r\nthe balance of my time.\r\n Chairman Sensenbrenner. The gentleman from Indiana, Mr. \r\nPence, is recognized for 5 minutes.\r\n Mr. Pence. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Pence. Thank you, Mr. Chairman. Mr. Chairman, I would \r\noppose the amendment offered by Mr. Watt and Ms. Waters.\r\n While I support clarifying Section 215 to allow for a \r\nrecipient to disclose receipt of a Section 215 order to an \r\nattorney, this provision inappropriately places an artificial \r\ntime limit on non-disclosure generally and places the burden on \r\nthe government to demonstrate that adverse effects will occur \r\nupon disclosure when seeking an extension on that period. \r\nEssentially, it flips the burden of proof in these cases. And \r\ngiven the nature of national security investigations, the time \r\nlimit imposed by this amendment, I would argue, Chairman, is \r\nwith respect unrealistically short. Investigations of terrorist \r\norganizations, for example, can last years, and requiring \r\nnotice of a disclosure under Section 215 would require \r\ninvestigators essentially to tip off suspects, which could \r\nenable them and their associates to go into hiding, to flee to \r\nchange their plans, and even accelerate their plots.\r\n And I would yield back the balance of my time.\r\n Chairman Sensenbrenner. The question is on the Watt \r\nAmendment.\r\n Ms. Waters. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Waters. I have co-authored this amendment because I \r\nthink it's very important. Among the things that have been \r\ndiscussed, this amendment allows the recipient of a Section 215 \r\norder at least to consult with their lawyer, allowing the \r\nrecipients to speak to their lawyers, injects a vital due \r\nprocess protection that is put in place that helps to ensure \r\nthat Section 215 authority is not abused without any mechanism \r\nfor recourse.\r\n Mr. Chairman, in its current form, Section 215 of the \r\nPATRIOT Act allows the FBI to seize and search any records on \r\nany person they chose as long as they can show it is relevant \r\nto a terrorism investigation.\r\n Moreover, the recipient of Section 215 orders are subject \r\nto an automatic gag order prohibiting them from telling anyone \r\nabout the search or seizure, including his or her lawyer.\r\n Mr. Chairman, this automatic gag order prevents the \r\nrecipient of a Section 215 order from being able to question \r\nthe order at all. The recipient would have to risk criminal \r\nsanctions to simply ask their lawyer whether the order is legal \r\nor to be advised of their rights under the order.\r\n This secrecy leaves Section 215 open for government abuse \r\nand exploitation. For example, under Section 215 orders, the \r\ngovernment can secretly monitor a public library's computers \r\nand be able to monitor who looks at what Internet sites, and \r\nwho has checked out specific books. This can all be conducted \r\nwithout giving anybody notice that they're under surveillance. \r\nThis gives the government too much secret surveillance power \r\nand eliminates any recourse for recipients of Section 215 \r\norders.\r\n Mr. Chairman, recipients of orders to produce records \r\nshould have a right to be able to consult with their lawyers to \r\nbe advised of their rights. And the government should not be \r\nallowed to conduct investigations in secret, for secret \r\ninvestigations all too often lead to government abuse.\r\n Therefore, I would ask my colleagues to please support the \r\nWatt-Waters Amendment, to place some commonsense restrictions \r\non Section 215, and I yield back the balance of my time.\r\n Mr. Lungren. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. Mr. Chairman, I must not be reading the bill \r\nthat you introduced, because I note in the bill that you \r\nintroduced you have provided an opportunity for people to \r\ndisclose to their attorney, and I recall we adopted Mr. Flake's \r\namendment, which made it very specific as to what one could do \r\nwith respect to talking to their lawyer, not only to respond to \r\nthis, but also to challenge it. And if that's the proper \r\nreading of Mr. Flake's amendment, I don't understand the \r\ncomments of the gentlelady from California that we just heard, \r\nnor the purpose of the amendment that we have here, if the \r\npurpose of the amendment we have now before us is to allow \r\npeople to disclose to their attorney, which on its face is in \r\nthe bill that's before us.\r\n I yield back the balance of my time.\r\n Mr. Conyers. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Michigan, Mr. \r\nConyers.\r\n Mr. Conyers. I rise to support the amendment of the \r\ngentleman from North Carolina. And I merely want to point out \r\nthat the objective of this bill is to make discretionary the \r\nissuing of the gag order rather than it being automatically \r\napplying under Section 215 to everybody, and so it wouldn't be \r\njust a matter of whether the attorney could be consulted, but \r\nit would cover libraries that can't let their patrons know that \r\nthe government has asked for information or a service provider \r\ncannot let its customer know that his or her records have been \r\nseized. And all we're saying in this amendment is not to place \r\na gag order automatically under 215; and that the government \r\nwould have to prove to then authorizing judge why a gag order \r\nis necessary.\r\n And it's in that sense that I think this is an excellent \r\namendment and I support it without question. I return my time.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr. \r\nFlake.\r\n Mr. Flake. Let me just reiterate what Mr. Lungren \r\nmentioned. My amendment sought to correct that, or just to \r\nclarify within the law that you can consult an attorney not \r\njust to respond to the case, but also to--with anything with \r\nrespect to the case. So I think it's fairly clear that the \r\nsubject of any action has the ability now to consult a lawyer.\r\n Ms. Waters. Will the gentleman yield?\r\n Mr. Flake. Yes.\r\n Ms. Waters. I have just been handed the amendment by you, \r\nMr. Flake, which does refer to Section 501(d), and I suppose as \r\nit is written, it would take care of my concerns and my \r\nconcerns that would linger with this would have to do simply \r\nwith the gag order.\r\n Mr. Flake. Thank you.\r\n Ms. Waters. Thank you very much.\r\n Mr. Flake. I yield back.\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Mr. Chairman, the point has been made that this \r\nchanges the presumption. The presumption is always that you \r\nnotify someone that you're searching their property. It's the \r\nonly way that you're going to have any sunshine on the \r\npractice, whether or not you're in the right place, whether or \r\nnot you're overly broad. This would allow a gag order to remain \r\nin effect for 180 days, and you can extend it indefinitely if \r\nyou can show cause. Otherwise, you have a permanent gag order \r\noperating in secret. I think this is an appropriate balance, \r\nand I would hope that we would adopt the amendment, and I yield \r\nto the gentleman from North Carolina.\r\n Mr Watt. Let me just make this point. I appreciate the \r\ngentleman yielding. I think we all are probably getting tired \r\nhere because we're ceasing to listen to each other. The \r\namendment is about whether a gag order goes into effect without \r\nanything or whether the government needs to get a court \r\nauthorization for a gag order. That's the only thing this \r\namendment is about.\r\n The 180 days is there as a presumptive time, but if the \r\ngovernment needs more time than 180 days, all it has got to do \r\nis go to the court and say that. The thing that's troubling \r\nabout this discussion is that the very people who are always--\r\nhave always expressed so much concern about the size and power \r\nof the government now seem to be defending the exercise and \r\nsize and power of the government against individual citizens. I \r\nthought--I really thought you all were really about downsizing \r\ngovernment and downsizing the power of government. We're not \r\ntrying to encourage terrorism. We're trying to create a balance \r\nbetween the government--what the government can do without \r\nsaying anything to anybody, without notifying anybody. All \r\nwe're trying to do set up a counterbalance to something that is \r\nunprecedented. This is unprecedented stuff that our government \r\ncould go in and look at our library records, and for you all to \r\nsit here and defend the government against that kind of \r\nintrusion, against even having to ask a court to evaluate \r\nwhether any kind of disclosure of that clandestine, quiet, \r\nsecretive action by the government should be exposed to the \r\nlight of day seems to me just to be unbelievable.\r\n I'm beginning to think you all have lost your bearings \r\nhere. I--well, I thank the gentleman for yielding.\r\n Mr. Scott. Mr. Chairman, reclaiming my time, I just to \r\nremind everybody that the person whose privacy is being invaded \r\nwill never know that their privacy is being invaded, even if \r\nsecrecy is not necessary. All this amendment does is after 180 \r\ndays let people know that the records were obtained and if \r\nsecrecy is necessary, let the government say that secrecy is \r\nnecessary.\r\n I mean there's--I yield back.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentleman from North Carolina, Mr. Watt.\r\n Those in favor will say aye. Opposed, no.\r\n Noes appear to have it. The noes----\r\n Recorded vote will be ordered. Those in favor of the Watt \r\nAmendment will as your names are called answer aye; those \r\nopposed, no, and the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n [No response.]\r\n The Clerk. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No .\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye..\r\n The Clerk. Mr. Nadler, aye.. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler.\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote. The gentleman from Illinois, Mr. Hyde.\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 13 aye and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments?\r\n The gentleman from Virginia, Mr. Scott.\r\n Mr. Scott. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Mr. Scott. Mr. Scott 34. It's page 9, line 11.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of \r\nVirginia.\r\n Page 9, line 11, strike the close quotation mark and the \r\nsecond period. Page 9, after line 11, insert the following: 4) \r\na person who prevails on a challenge of the legality of an \r\norder under this subsection is entitled to reasonable attorneys \r\nfees, if any, incurred by the person in pursuing the challenge.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, page 7, \r\nline 16, purports to give a person who gets one of these orders \r\nthe right to challenge it. What this amendment would do is if \r\nhe can get through all of the legalities and actually wins, he \r\nought to be able to get his attorneys fees.\r\n Now, let's remember what's going on here. You get a library \r\nor somebody who gets an order to give up somebody's private \r\nmaterial, if they're going to contest it, if it is obviously \r\noverly intrusive and not necessary, are they going to incur \r\n$10,000, $20,000, $25,000 worth of legal expenses in order to \r\ncontest it for someone else when they can't tell the other \r\nperson that they're actually going to go through this on their \r\nbehalf or are they just going to comply with the order and give \r\nup individual private information that shouldn't have been \r\nasked for.\r\n All this says if you can get through all of the legal mumbo \r\njumbo and actually win the case, if you have a slam dunk, that \r\nyou can afford to bring it.\r\n Otherwise, the fact that you have the paper right to bring \r\nthe case is ridiculous because you can never do it because you \r\ncan't afford it.\r\n And I would hope that we would at least allow attorneys \r\nfees for that one in a million case that can actually bring a \r\ncase and win it so that they could--would actually bring the \r\ncase if the warrant was not necessary.\r\n I yield back.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nGohmert.\r\n Mr. Gohmert. Thank you, Mr. Chairman. I'd just like to \r\nsimply offer--it's a little vague, since--it says a person who \r\nprevails on a challenge. Does that mean you win one challenge \r\nand you lose a whole bunch. But I would offer this--and I can \r\nonly speak for myself personally--but if the gentleman from \r\nVirginia and those across the aisle would agree to have a lose \r\nor pay situation in tort cases, you've got my vote on your \r\namendment right here. And I'll yield back my time.\r\n Mr. Scott. If the gentleman would yield?\r\n Mr. Gohmert. Yeah. I've yielded back my time to the \r\nChairman.\r\n Chairman Sensenbrenner. The question is on the Scott \r\nAmendment. Those in favor will say aye. Opposed, no.\r\n Noes appear to have it. The noes have----\r\n Recorded vote will be ordered. Those in favor of the Scott \r\nAmendment will as your names are called answer aye. Those \r\nopposed, no. And the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No .\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye..\r\n The Clerk. Mr. Nadler, aye.. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler.\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote. The gentleman from California, Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, I have 14 ayes and 22 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments.\r\n Mr. Schiff. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff.\r\n Mr. Schiff. Mr. Chairman, I have an amendment at the desk, \r\nnumbered 75.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff. \r\nAmend Section 4 to read as follows: Section 4, Extension of \r\nSunset Provision relating to Individual Terrorists as Agents of \r\nForeign Powers. Subsection B of Section 6001 of the \r\nIntelligence Reform and Terrorism Prevention Act----\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read. And the gentleman from California will be \r\nrecognized for 5 minutes.\r\n Mr. Schiff. Mr. Chairman, this provision is fairly \r\nstraightforward. It provides a 3-year sunset for the so-called \r\nlone wolf provision. And I want to explain why I think this is \r\ndifferent in kind than the earlier debate we've had on sunsets. \r\nAnd that is the authority to go after loan wolves was just \r\nrecently enacted in December of last year, so we haven't had \r\nthe same kind of track record we have had with other sections \r\nof the PATRIOT bill.\r\n The loan wolf provision eliminates the requirement in FISA \r\nthat surveillance or searches be carried out only against \r\npersons suspected of being agents of foreign powers or \r\nterrorist organizations. It was an attempt to fix a loophole \r\npotentially that would allow or preclude us from going after \r\nlone terrorists where we couldn't show an affiliation to an \r\ninternational terrorist group.\r\n But there have been a number of concerns raised on this \r\nCommittee with the application of this provision to individuals \r\nwhere you can't show a connection to a foreign government or an \r\ninternational terrorist organization. In fact, a compromise \r\nproposal based on language of Senator Feinstein was offered by \r\nMr. Berman in the 9\/11 bill, which I believe was adopted with \r\nbipartisan support in this Committee.\r\n Rather than take that approach which was one of presuming \r\nthat a lone terrorist was acting in concert with international \r\norganization or with another government, rather than take that \r\napproach, it might be simpler and cleaner to provide a sunset \r\nin a reasonable period of time--3 years--so that we'll have 4 \r\nyears of experience in total so that we can evaluate and make \r\nsure that this is only being applied in the right \r\ncircumstances.\r\n It's not the intention of FISA to go after people who want \r\nto commit acts of domestic terrorism, like blowing up a Federal \r\nbuilding over hostility to the government or to tax policy or \r\nwhat not. And want to make sure that this lone wolf provision \r\nis being appropriately applied.\r\n So this would basically give the lone wolf provision the \r\nsame sunset that the rest of the PATRIOT bill had, but because \r\nthis is a late edition, we don't have the same track record \r\nwith it. And I would urge my colleagues' support.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Schiff. Yes, Mr. Chairman.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nIssa?\r\n Mr. Issa. Thank you, Mr. Chairman. And I rise in opposition \r\nto this----\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Issa. Thank you, Mr. Chairman. The provisions--the lone \r\nwolf provisions in the original version of H.R. 10 is virtually \r\nidentical to the lone wolf provision contained in Senate 113, \r\nwhich was passed in the Senate by a 90 to 4 vote, and was co-\r\nsponsored by Senators Biden and Schumer. I do appreciate the \r\ngentleman from California's belief that there hasn't been \r\nenough time or that perhaps this could be abused. But I think \r\nit's clear that with London bombing just days ago, on 7\/7, that \r\nwe're going to continue to have lone wolves. We're going to \r\ncontinue to have individuals who cannot either at the time \r\nbefore or even immediately following a crime necessarily be \r\nlinked to an international terrorist group, and that, in fact, \r\nthis legislation, as it is, is important to be left as it is. \r\nThere has been no case for sunsetting because there--although \r\nyou mentioned concerns, there have been no examples of abuse or \r\nanything inappropriate under the current law.\r\n And I would suggest that if you have a reform of the \r\ncurrent law, this is an appropriate time to bring it, but not \r\nsimply to sunset something for which we have not yet discovered \r\na flaw.\r\n I'd yield to the gentleman from California for a question.\r\n Mr. Schiff. I appreciate the gentleman yielding. Did the \r\ngentleman support the 9\/11 bill? The amendment offered by Mr. \r\nBerman, which would have modified this section to provide \r\nadditional protection? I think it was supported on a bipartisan \r\nbasis. If it was good then, it should be good now.\r\n And, in fact, this is less----\r\n Mr. Berman. It was good then.\r\n Mr. Schiff. --restrictive.\r\n Mr. Berman. It was good then.\r\n Mr. Issa. Mr. Berman is assuring us, reclaiming my time, \r\nthat it was good then. You know, this is the--we are existing \r\nwith the law today. What you're proposing to do is to sunset \r\nrather than potentially amend. I mean we're glad--I'm happy to \r\ntalk about amendments. That's what we're here for. But I'm \r\ngoing to be--resist and ask my colleagues on both sides of the \r\naisle to resist simply kicking the can down the road 3 more \r\nyears in case we discover something. I believe that appropriate \r\nand routine oversight now is what we're going to have on this.\r\n Chairman Sensenbrenner. Would the gentleman yield back?\r\n Mr. Issa. Yeah. I yield back.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nBerman?\r\n Mr. Berman. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Berman. I think this is a very good amendment. Mr. \r\nSchiff has explained it well. But I want to just remind my \r\ncolleagues on the Committee and the lone wolf--it is certainly \r\ntrue that there can be this lone operator out there and engaged \r\nin terrorist acts or planning terrorist attacks so we want to \r\nhave the tools to deal with that person. But remember the \r\nfundamental structure of all this. It's all base on a FISA \r\nCourt where there is a lower threshold for getting surveillance \r\nwarrants and all these different things, not probable cause \r\nthat a crime has been committed.\r\n And the only reason it--the real reason why it's been \r\nconsidered to be constitutional is because it's geared to \r\nforeign powers or agents of foreign powers.\r\n Almost by definition, the lone wolf is not and can't be an \r\nagent of a foreign power, 'cause he's a lone wolf.\r\n Mr. Issa. Would the gentleman yield?\r\n Mr. Berman. Yes.\r\n Mr. Issa. You know, I don't want to be the ultimate \r\nconspiracy theorist, but was Lee Harvey Oswald, in his trips \r\nback and forth to Cuba, a lone wolf or was he an agent of \r\nforeign government? We don't always know that. We have a good-\r\nfaith belief that somebody may be an agent of a foreign \r\ngovernment. And I certainly think that on the next amendment \r\nwhich I understand you are going to offer, we can have further \r\ndiscussion. But when it comes to the sunsetting, I think we are \r\ndealing with sunsetting here, not with the substance of your \r\namendment.\r\n Mr. Berman. Well, but, I mean, the same logic that we \r\ndebated how long the sunset should be certainly applies to this \r\nas well. But I wasn't planning to offer the amendment, and you \r\nhaven't said enough to make me think I should rethink my \r\nposition yet.\r\n Mr. Issa. I will be glad not to have you rethink your \r\nposition.\r\n Mr. Berman. But look, let me just--the constitutional \r\nrequirement that the lesser standards and privacy protections \r\nauthorized for FISA surveillance pass constitutional is that \r\nthey are limited to use against foreign powers and their \r\nagents. There is a constitutional question here. I had offered \r\nan amendment before that created a presumption that the FISA \r\ncourt could apply, a presumption that the lone wolf was an \r\nagent of a foreign power. That was adopted, and then somehow \r\ndisappeared.\r\n But, so particularly where you have something that is \r\nconstitutionally at least arguably questionable here, the logic \r\nof a sunset is even greater because it imposes a kind of review \r\nand helps--becomes a forcing mechanism for us to look at a way \r\nto salvage a provision which, in the context of what we want to \r\ndo on terrorism, makes sense.\r\n And so I think you ought to give Mr. Schiff the sunset \r\nclause here, and then let's create a process that sort of \r\nempowers us to--or that forces us to figure out the right way. \r\nMaybe it is not the presumption. Maybe there is something else \r\nwe can do to deal with the constitutional questions involved in \r\nletting this kind of surveillance take place against someone \r\nwho might not have any connection to a foreign power or be an \r\nagent of a foreign power.\r\n Mr. Delahunt. Would the gentleman yield?\r\n Mr. Issa. Sure.\r\n Mr. Delahunt. I wonder if the gentleman from California and \r\nthe Chairman would consider, if Mr. Schiff was willing to, by \r\nunanimous consent, amend his amendment and bring it in line in \r\nterms of the sunset with the other two provisions that Mr. \r\nLungren's amendment made part of the bill today, that would \r\ngive us three provisions. And particularly, given the arguments \r\nthat both Mr. Berman made and I think Mr. Schiff accurately \r\nmade, it would give us a period of time to test the----\r\n Chairman Sensenbrenner. The gentleman's time has expired.\r\n The question is on the amendment offered by the gentleman \r\nfrom California, Mr. Schiff. Those in favor will say aye? \r\nOpposed, no?\r\n The noes appear to have it.\r\n Mr. Schiff. Mr. Chairman, I request a recorded vote.\r\n Chairman Sensenbrenner. A recorded vote will be ordered. \r\nThose in favor of the Schiff amendment will, as your names are \r\ncalled, answer aye; those opposed, no. And the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n [No response.]\r\n The Clerk. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir vote? The gentleman from North Carolina, Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr. \r\nFlake.\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 22 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n Are there further amendments?\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nNadler.\r\n Mr. Nadler. Thank you, Mr. Chairman.\r\n I have an amendment at the desk. It is labeled Nadler-\r\nJackson Lee-Waters.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler, \r\nMs. Jackson Lee, and Ms. Waters. Add at the end the following: \r\nSec. ___. Limitation on Time to Delay Notice of Search \r\nWarrants. Section 3103a(b)(3) of title 18, United States Code, \r\nis amended by striking ``a reasonable period'' and inserting \r\n``30 calendar days, which period, upon application of the \r\nAttorney General, the Deputy Attorney General, or an Associate \r\nAttorney General, may thereafter be extended by the court for \r\nadditional periods of up to 60 calendar days.''\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Mr. Smith. Mr. Chairman, I reserve a point of order.\r\n Chairman Sensenbrenner. A point of order has been reserved \r\nby the gentleman from Texas.\r\n The gentleman from New York, Mr. Nadler, is recognized for \r\n5 minutes, subject to the point of order reserved.\r\n Mr. Nadler. Thank you, Mr. Chairman.\r\n This is a very simple amendment. Section 213 of the PATRIOT \r\nAct allows the FBI to conduct secret searches--it is the so-\r\ncalled sneak-and-peek section. It allows the FBI to conduct \r\nsecret searches in any investigation, including run-of-the-mill \r\ncriminal investigations, and indefinitely delay notice to the \r\ntarget of the search.\r\n Right now, they can delay notice for a reasonable period, \r\nwhich can be anything. And what this amendment says is it \r\nshould be 30 calendar days. However, upon application to the \r\nAttorney General, the Deputy Attorney General, or an Associate \r\nAttorney General, it can thereafter be extended by the court--I \r\nam sorry, an application ``by'' the Attorney General or his \r\ndeputies--can be extended by the court for additional periods \r\nof up to 60 calendar days.\r\n Now, those can be any number of additional 60 calendar \r\ndays. And it is very simple. If you are going to conduct a \r\nsearch of a person's home or business, there may be a good \r\nreason not to tell them afterwards. There may be a good reason \r\nthat, if you told them, it would result in destruction of \r\nevidence or in flight from the jurisdiction or in death or \r\nsomething, and therefore you don't want to tell them. But it is \r\nan invasion of liberty to be able to--it is an invasion of our \r\ntraditions to be able to conduct a search without telling them \r\nafterward. So this simply says after a certain period of time, \r\n30 days, if you think that you still can't tell them, you tell \r\nthe court why. And then 60 days and 60 days and 60 days. It is \r\nsimply giving the court the authority to limit how long the \r\nlack of notification after a search of someone's premises can \r\nbe.\r\n Now, the PATRIOT Act extended sneak-and-peeks from where \r\nthey were to cases where the Fourth Amendment is applicable \r\nand, frankly, to somewhat questionable constitutionality, this \r\nprobably ameliorates any challenge to its constitutionality. \r\nBut it is the right thing to do from a liberty aspect. Where \r\nyou really need to keep that secret for any length of time, \r\nthat is fine; you can do that. And where you shouldn't, you \r\nhave to review it every 60 days.\r\n So I urge the adoption of this amendment.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Nadler. Yes, he does.\r\n Mr. Smith. Mr. Chairman, I will withdraw my point of order.\r\n Chairman Sensenbrenner. Reservation is withdrawn.\r\n The gentleman from Arizona, Mr. Flake.\r\n Mr. Flake. This is with regard to the 30 calendar days you \r\nare asking for.\r\n Mr. Nadler. Thirty calendar days, and after--would the \r\ngentleman yield?\r\n Mr. Flake. No, let me explain first and then I will yield.\r\n Mr. Nadler. Well, I think you just asked a question. Just \r\nto answer your question.\r\n Mr. Flake. Okay, yes.\r\n Mr. Nadler. Thirty calendar days and 60-day extension by \r\nthe court.\r\n Mr. Flake. I do have an amendment that will come up on the \r\nfloor, if it is made in order, which would have--instead of 30 \r\ndays, it would be 180 days. It would be the maximum time \r\nallowed now, and additional periods up to 90 days.\r\n Mr. Nadler. It would be 180 days for the first?\r\n Mr. Flake. Yes.\r\n Mr. Nadler. And then additional period of 90?\r\n Mr. Flake. Ninety days, yes. And I would be happy to work \r\nwith the gentleman on an amendment.\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Flake. Yes.\r\n Mr. Nadler. Well, first of all, I am glad to hear it was \r\nmade in order. I didn't know the rules----\r\n Mr. Flake. No, no, I said if it is made in order.\r\n Mr. Nadler. Oh, if it is made in order. Well, I would \r\ncertainly support that amendment. I think 30 and 60 is better--\r\nwhat did you say, 180 and 90?\r\n Mr. Flake. One hundred eighty and 90.\r\n Mr. Nadler. Well, I think 30 and 60 is better, because you \r\nought to--I could support 180, but I think 30 is better. I \r\nthink 60 is better to go back to courts. I would hope the \r\ngentleman would support this in Committee. I don't know why we \r\nwait for the floor to do this if it is a good idea.\r\n Mr. Flake. I will support it anywhere. But----\r\n Mr. Nadler. Well, I hope you support this amendment.\r\n Mr. Flake. No, no. No, I would like to support my \r\namendment. And my understanding is we would like to do it on \r\nthe floor.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Flake. I yield back.\r\n Chairman Sensenbrenner. The question is on the----\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Mr. Chairman, this is an interesting process \r\nwhere everybody is going to have their amendments on the floor \r\nrather than in--subject to a hearing, subject to Subcommittee \r\nmarkup and a Committee markup. We got the bill just a few days \r\nago. We haven't had a hearing on the bill. And here we are with \r\nthe rules people taking--I don't know whether the Rules \r\nCommittee will allow these amendments or not, but it is just an \r\nunusual circumstance.\r\n The purpose of the notice and the presumption of notice, \r\nusually there is an extraordinary situation that you would \r\nsneak and peek for a search warrant anyway. If there is a \r\nmistake, the fact that you have notified someone right there on \r\nthe spot, they can tell you that you are searching the wrong \r\nhouse. This is a tremendous invasion. It is a constitutional \r\nright to be secure in your person and property.\r\n The amendment is reasonable. And we ought to have a debate \r\non the amendment rather than just hide the ball and spring it \r\non us. We don't know what these amendments are going to look \r\nlike on the floor, and we ought to debate it here in a fair \r\ndebate. It is just an unusual circumstance and procedure that \r\npeople--I don't know what happened in the cloak room back \r\nthere. But I will yield to the gentleman from New York.\r\n Mr. Nadler. Thank you. I would ask the gentleman from \r\nArizona if you think it is a good idea to do--I mean, I am \r\nrealistic. I have seen the fate of most amendments today. If \r\nyou think you could support 180 days and 90 days, I will be \r\nhappy to change this amendment to 180 and 90 and maybe we could \r\nget support for that right here.\r\n Mr. Flake. I will agree to work with the gentleman on it. \r\nThis deserves more time, but----\r\n Mr. Nadler. Would you support it in this Committee?\r\n Mr. Flake. No, I would prefer to go with my own amendment \r\non that.\r\n Mr. Scott. Reclaiming my time. Will the gentleman offer his \r\namendment now so we can see it?\r\n Mr. Flake. I am still working on it, but--on the precise \r\nlanguage of it. All I have looked at, and I would have to \r\ncompare it to the language I am working on, but I see the 30 \r\nand 60, I know that I have gone 180 and 90. I haven't looked at \r\nthe precise language other than that. I would need more time to \r\ndo that.\r\n Mr. Scott. Reclaiming my time. Would the gentleman want to \r\njoin in my complaint that we haven't had time to consider this \r\nin Committee? I mean, you haven't had time to prepare your \r\namendment. I assume you notice that this is a rushed process. \r\nYou have amendments you are still working on. We haven't had \r\nSubcommittee, and here we are in Committee on a short notice. \r\nDoes the gentleman acknowledge that this is a rushed process; \r\nyou have not had adequate time to prepare your amendments?\r\n Mr. Flake. I would not acknowledge any such thing. We have \r\nhad 12 hearings. You mention there has not been a hearing on \r\nthe amendment. To my knowledge, we don't typically call \r\nhearings on amendments. But on the bill, the underlying bill, \r\nwe have held 12 hearings on. This has been quite a deliberative \r\nprocess.\r\n Mr. Scott. Reclaiming my time. I would remind the gentleman \r\nthat we have had no hearings on the bill.\r\n Mr. Flake. Well, we actually did have a hearing on delayed \r\nnotice.\r\n Mr. Scott. Well, we have had no hearings on the bill. We \r\nhave had hearings on the act, we have had hearings on the \r\nsubjects, but we have not seen the bill. And that is why the \r\ngentleman is having trouble with his amendments. Can't get them \r\nready because we haven't had a hearing. Now, had we had a \r\nhearing on the bill, the gentleman would have possibly had time \r\nto prepare an amendment where it could be considered in the \r\nnormal process.\r\n I yield to the gentleman from California.\r\n Mr. Issa. Thank you. And I think, to find a common \r\nagreement, I think it is wonderful we have a member on this \r\nside of the aisle who talked to you in principle, what he is \r\nlooking at. It is different than what you are looking at by a \r\nsignificant amount of days. But----\r\n Mr. Nadler. But we are willing to change it to those days.\r\n Mr. Issa. What I would suggest is either withdraw--and I \r\nwould suggest withdraw without prejudice--and work on it behind \r\nthe scenes. Because at this point, I think what we agree on is \r\nwe disagree on the number of days, so why have a vote? Why not \r\nget a----\r\n Mr. Nadler. Would the gentleman yield?\r\n Mr. Scott. Reclaiming my time, I yield to the gentleman \r\nfrom New York.\r\n Mr. Nadler. Thank you. I think I said a few moments ago, I \r\nam willing to change the number of days to the same number of \r\ndays that the gentleman mentioned a moment ago, 180 and 90. So \r\nthere is no difference on that. I am not aware of what language \r\nthere is here. It is simply a question of listing the number of \r\ndays.\r\n There seems to be a determination not to do an amendment on \r\nthis subject in Committee, but only on the floor. Now, maybe \r\nthere is a reason for that, but it is not the----\r\n Mr. Flake. Will the gentleman yield? I would like to ask \r\nunanimous consent to include in the record the chronology of \r\nthe hearings that we have held on this subject.\r\n Chairman Sensenbrenner. Without objection.\r\n [The chronology of hearings follows:]\r\n \r\n \r\n Mr. Nadler. Reclaiming--reclaiming somebody's time. I \r\ndon't----\r\n Chairman Sensenbrenner. The time of the gentleman from \r\nVirginia has expired.\r\n Mr. Nadler. Could I ask unanimous consent for an additional \r\n2 minutes to the gentleman's----\r\n Chairman Sensenbrenner. Without objection.\r\n Mr. Nadler. And I assume he yields to me, since he is \r\ntalking.\r\n I don't have any quarrel or complaint about the fact that \r\nwe had only 12 hearings and maybe we should have held 13. That \r\nis not what anybody is saying here. What we have been saying is \r\nthat there has been no--my complaint is that we have had no \r\ntime, really, since we saw the Chairman's bill, which was only \r\nFriday night, or late Friday. And as I said at the beginning of \r\nthis hearing back at--you know, a few hours ago, we should have \r\nhad time to send this bill out for comment to everybody across \r\nthe country, to the law schools, the Civil Liberties Union, the \r\nConservative Union, and the libertarian groups, and get their \r\ncomments and fashion amendments with that. That would have also \r\ngiven us time so that the gentleman from Arizona could have had \r\nhis amendment ready for this Committee.\r\n But the fact is, we are willing to go with an amendment--\r\nLet me put it this way. If you don't--we are willing to go with \r\nan amendment now that says 180 and 90 days. And if the \r\ngentleman thinks, upon further reflection before the floor, \r\nthat for some reason, if we were to pass that amendment with \r\nthe gentleman's support, that the language--the only language \r\nhere is the time. If the language needs changing, you can \r\ncertainly try to do that on the floor. But it would certainly \r\nbe helpful I would think to the process if we agree on 180 days \r\nand 90 days, to get that concept at least in the bill at this \r\npoint.\r\n At this point, let me ask unanimous consent to change my \r\namendment to 180 days and 90 days.\r\n Chairman Sensenbrenner. Is there objection?\r\n Hearing none, the modification is agreed to.\r\n Mr. Coble. Objection.\r\n Chairman Sensenbrenner. Objection is heard.\r\n Mr. Nadler. Objection is heard to--?\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Coble.\r\n The question is on the option----\r\n Mr. Nadler. Well, Mr. Chairman, I will withdraw the \r\namendment and submit another amendment with the appropriate \r\nnumber of days in about 20 minutes. If you want to waste the \r\ntime, I am perfectly willing to do that.\r\n I withdraw the amendment.\r\n Chairman Sensenbrenner. The amendment is withdrawn.\r\n Ms. Jackson Lee. Mr. Chairman, I have an amendment.\r\n Chairman Sensenbrenner. The gentlewoman from Texas, Ms. \r\nJackson Lee.\r\n Ms. Jackson Lee. I thank the Chairman very much. I have an \r\namendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n Ms. Jackson Lee. It should be--I don't want to mislabel it. \r\nI have it as 052, amendment to--I am sorry, excuse me. Let's \r\nsee. Excuse me, I am sorry. The amendment is 001 XML Section \r\n218.\r\n The Clerk. Amendment to H.R. 3199, offered by Ms. Jackson \r\nLee. At the appropriate place in the bill insert the following \r\nnew section.\r\n Sec. 218. Notice of Search or Surveillance If Subject of \r\nSuch Search Or Surveillance Is A United States Person That Is \r\nNot An Agent Of A Foreign Power.\r\n (a) Electronic Surveillance. --Section 106 of the Foreign \r\nIntelligence Surveillance Act of 1978 (50 U.S.C. 1806) is \r\namended by adding at the end the following new subsection:\r\n ``(1) Where an electronic surveillance authorized and \r\nconducted pursuant to section 105 involves a United States \r\nperson--''\r\n Ms. Jackson Lee. Mr. Chairman, I would ask unanimous that \r\nthe amendment be considered as read.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Ms. Jackson Lee follows:]\r\n \r\n \r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Jackson Lee. Thank you very much, Mr. Chairman. I note \r\nthroughout the day the vigorous----\r\n Mr. Smith. Mr. Chairman, I reserve a point of order.\r\n Chairman Sensenbrenner. It is too late to reserve a point \r\nof order. The gentlewoman has already been recognized.\r\n Ms. Jackson Lee. May I proceed, Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman is recognized.\r\n Ms. Jackson Lee. Thank you very much, Mr. Chairman.\r\n I note throughout the day that there has been a vigorous \r\ndiscussion, and I would hope that that discussion might have \r\nlent itself to a number of opportunities to work together. As I \r\nstarted this morning, I indicated my departure was on the basis \r\nof a historic day today, and that is the return to human space \r\nflight.\r\n We have an historic opportunity, which is to recognize that \r\nwe are a Nation of laws and, of course, a Nation of liberty. \r\nThis amendment tries to focus on that particular point and it \r\naddresses part of the number of abuses that have occurred under \r\nthe USA PATRIOT Act. In particular, I would like to bring \r\nattention to an abuse in the Brandon Mayfield case. The FBI \r\nused Section 218 to secretly break into his house, download the \r\ncontents of four computer drives, take DNA evidence, and take \r\n355 digital photographs. Though the FBI admits Mr. Mayfield is \r\ninnocent, they still will not divulge a secret court order to \r\nhim or allow him to defend himself in court. It is unclear how \r\nthe search was for any reason but to find evidence \r\nincriminating Mr. Mayfield.\r\n In Virginia, we are told of a physician of Pakistani \r\norigin. In fact, I believe his discipline is as a neurologist. \r\nWell-respected in his community, arrested. We understand that \r\nhis property may have been searched. Ultimately, after a period \r\nof time, he was released. To his friends and family, they \r\nwelcomed him back. But at the same time, suspicion still \r\npresides over him among his peers and neighbors.\r\n And so I speak strongly in support of an amendment that I \r\nbelieve speaks to the question of liberty. In general, this \r\namendment would amend the FISA to protect the Fourth Amendment \r\nrights of individuals whose homes are secretly searched, or \r\nconversations overheard, but who turn out not to be spies and \r\nterrorists, by requiring that they may be notified of the \r\nsearch or surveillance, of the fact.\r\n More specifically, the amendment states that where \r\nelectronic surveillance is authorized for use on a United \r\nStates person, if at any time it is determined by the Attorney \r\nGeneral that the person is not an agent of a foreign power, the \r\nAttorney General must give notice to the person no later than \r\n180 days after the date it is determined that the person is not \r\nan agent of a foreign power.\r\n Under the amendment, the same principle is applied to \r\nphysical searches, pen registers, taps, and trace devices.\r\n Before moving forward, it is important to mention why this \r\namendment is needed. Section 218 broadens the circumstances \r\nwhen secret surveillance and secret searches targeted against \r\nAmericans may be used. In fact, the number of FISA \r\nsurveillances and searches have substantially increased since \r\nthe PATRIOT Act. Having eliminated a key safeguard against \r\nabuse of these extraordinary powers, Congress should now act to \r\nprotect constitutional rights at issue in FISA surveillance.\r\n Today we cannot ignore the Constitution in reauthorizing \r\nthis legislation. Congress can do so without erecting a new \r\nwall against information sharing, one of the rationales for \r\nadopting Section 218. The suggested protections will not \r\ninterfere with information sharing; in all events, Section 504 \r\nof the PATRIOT Act explicitly states that FISA information may \r\nbe shared with law enforcement personnel. FISA, unlike sneak-\r\nand-peek searches under Section 213 of the PATRIOT Act, \r\nauthorizes searches and wiretaps that are kept permanently from \r\nthe Americans whose homes and conversations are targeted, where \r\nsecrecy raises serious Fourth Amendment concerns. As a result \r\nof Section 218, the use of these extraordinary powers has \r\nincreased.\r\n The ability or the inability to give notice to someone \r\nproven innocent also lends itself to one of our ugliest \r\naccusations in America, and that is racial profiling and \r\nreligious profiling, leaning more toward individuals of a \r\nparticular religion or race in the course of our efforts to \r\nsecure the homeland. FISA procedures also raise due process \r\nconcerns when individuals are charged based on FISA evidence. \r\nThe only time the Government is required to inform an \r\nindividual that he has been subject to FISA surveillance is \r\nwhen it brings charges against him.\r\n This amendment is transparent when necessary. It is \r\ntransparent when the individual has been proven innocent, no \r\ncharges have been brought against him. It seems absolutely no \r\nreason that the individual cannot, if you will, be given notice \r\nno later than 180 days after the date it is determined that the \r\nperson is not an agent of a foreign power. It seems that this \r\ncomports with our----\r\n Mr. Smith. (presiding) The gentlewoman's time has expired.\r\n Ms. Jackson Lee. It seems that this comports, Mr. Chairman, \r\nwith our effort at adhering to laws and to liberty. I would ask \r\nmy colleagues to support this amendment.\r\n Mr. Feeney. Mr. Chairman?\r\n Mr. Smith. The gentleman from Florida, Mr. Feeney, is \r\nrecognized.\r\n Mr. Feeney. I move to strike the last word, and I \r\nappreciate the gentlelady's----\r\n Mr. Smith. The gentleman is recognized for 5 minutes.\r\n Mr. Feeney. I appreciate the gentlelady's comments. In the \r\nfirst place, we are very mindful of the constitutional \r\nrequirements of the Bill of Rights and elsewhere. There is no \r\npart of the PATRIOT Act that has been determined to be infirm \r\nby any Federal court as unconstitutional.\r\n Secondly, while the gentlelady talks about the rights of \r\ncitizens--and they are very important on this side of the \r\naisle, I can assure her--we are not talking about criminal \r\ninvestigations of citizens. We are talking about terrorist \r\ninvestigations or spy investigations.\r\n And thirdly, while the gentlelady's amendment goes to \r\nnotification by third parties of individuals if they are \r\ndetermined by the Justice Department not to actually be an \r\nagent of a foreign power, her amendment doesn't say anything \r\nabout the case where this individual that was originally a \r\ntarget turns out to be connected to a spy, perhaps the husband \r\nor the wife of a spy, perhaps a partner of a spy. And what the \r\ngentlelady is forcing the Justice Department to do with her \r\namendment is to have our folks in the middle of an \r\ninternational terrorist or spy investigation show our cards to \r\nthe whole world, including the bad guys. And I suggest that it \r\nis a bad idea.\r\n I yield back the balance of my time.\r\n Mr. Smith. The gentleman yields back the balance of his \r\ntime. Are there any other members who wish to be heard on the \r\namendment?\r\n If not, the vote occurs on the amendment. All those in \r\nfavor----\r\n Mr. Schiff. I would move to strike the last word and I \r\nwould yield my time----\r\n Mr. Smith. The gentleman from California is recognized for \r\n5 minutes.\r\n Mr. Schiff. And I yield to the gentlewoman.\r\n Ms. Jackson Lee. Mr. Chairman, let me beg to differ with my \r\ngood friend. A number of sections have been found \r\nunconstitutional. Let me share with the gentleman. Section 805 \r\nhas been found unconstitutional by three separate courts. That \r\nis the question of material support for terrorism. The 9th \r\nCircuit found the provision prohibiting personnel in training \r\nwas overly vague. The Central California District Court found \r\nthe provision prohibiting expert advice and assistance was \r\noverly vague. A New York District Court found the provision \r\nprohibiting personnel and acting as a quasi-employee overly \r\nvague.\r\n A number of these provisions have been found to be abusive \r\nand, of course, an over-reach. I join my distinguished friend \r\nto argue for security. We have had a number of incidences of \r\nwhich we even recognize the importance of intelligence, such as \r\nthe tragedy of the rail explosions in London, England. My point \r\nis that there comes a point, when the individual is found not \r\nto be part of a foreign agent, when you tell that individual.\r\n Now, if you have information against, if you will, the \r\nwife, the cousin, the neighbor of this individual, then that is \r\nwho the FBI should be reaching out to, not the particular \r\nperson who has been cleared of being a foreign agent. And \r\ncleared. If the FBI wants to start this process again, they can \r\nstart the process again. This simply provides them with the \r\nappropriate notice after they have been cleared and determined \r\nthat they are not an agent of a foreign power, which is the \r\nbasis of this particular section.\r\n Mr. Feeney. Will the gentlelady yield?\r\n Ms. Jackson Lee. I yield for a moment.\r\n Mr. Feeney. The point is, it is too late after you tell \r\nMrs. Benedict Arnold that she was the subject of an \r\ninvestigation, if you find out that it is her husband that \r\nwants to throw the war to the bad guys.\r\n Ms. Jackson Lee. Reclaiming my time. I think that it is not \r\ntoo late, frankly. And I think that when the FBI or when law \r\nenforcement makes a determination that this individual is not \r\nan agent of a foreign power, you can be assured that in the \r\ncourse of doing so they have investigated all of their extended \r\nfamily members, friends, neighbors, and otherwise. And they \r\nhave the ability to, if you will, to secure those persons in \r\nthe appropriate way so that if they have information that is \r\nrelevant, they can have those individuals incarcerated.\r\n This provides--contributes to the list of abuses that has \r\nbeen generated by the PATRIOT Act, and in actuality it offers \r\nmore of an undermining of our attempt to be secure than it does \r\nin enhancing our attempt to be secure. It casts a wide net on \r\npeople that are already established as not being an agent of a \r\nforeign power.\r\n I frankly believe that this is not working, that this is an \r\namendment that is clearly not over-broad. It simply makes a \r\nstatement of giving notice. It simply allows someone to proceed \r\nto further clear themselves and to be made aware that they have \r\nbeen determined not to be an agent of a foreign power.\r\n Again, it does not stop the authorities from investigating \r\nall other people associated with them.\r\n And I would ask my colleagues to support this amendment.\r\n Mr. Smith. The question occurs on the amendment. All those \r\nin favor, say aye. All those opposed say nay.\r\n Ms. Jackson Lee. rollcall.\r\n Mr. Smith. The noes have it, and the amendment is not \r\nagreed to. The clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n [No response.]\r\n The Clerk. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n [No response.]\r\n The Clerk. Mr. Green?\r\n [No response.]\r\n The Clerk. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n [No response.]\r\n The Clerk. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n [No response.]\r\n The Clerk. Mr. Conyers?\r\n [No response.]\r\n The Clerk. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n [No response.]\r\n The Clerk. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n [No response.]\r\n The Clerk. Ms. Lofgren?\r\n [No response.]\r\n The Clerk. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n [No response.]\r\n The Clerk. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n [No response.]\r\n The Clerk. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Are there any members who wish to \r\ncast or change their votes? The gentleman from North Carolina \r\nis recognized.\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nGallegly, is recognized.\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. The gentleman from within, Mr. \r\nGreen, is recognized.\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nGoodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. The gentleman from Tennessee, Mr. \r\nJenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nGohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no.\r\n Chairman Sensenbrenner. The gentleman from Indiana, Mr. \r\nHostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no.\r\n Chairman Sensenbrenner. The gentleman from Ohio, Mr. \r\nChabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Chairman Sensenbrenner. The gentleman from Iowa, Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no.\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye.\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye.\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nNadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye.\r\n Chairman Sensenbrenner. Are there any other members who \r\nwish to vote or change their vote? If not--Excuse me, the \r\ngentleman from Michigan, Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye.\r\n Chairman Sensenbrenner. The clerk will report.\r\n The Clerk. Mr. Chairman, there are 10 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n The gentleman from Arizona, Mr. Flake, is recognized for an \r\namendment.\r\n Mr. Flake. I have an amendment at the desk and I ask \r\nunanimous consent that it be considered the Flake-Nadler \r\namendment.\r\n Chairman Sensenbrenner. The clerk will read the amendment. \r\nAnd without objection, it will be so named.\r\n The Clerk. Mr. Chairman, I don't have a copy of the \r\namendment.\r\n Chairman Sensenbrenner. Okay. It will be forthcoming, I \r\nthink. The gentleman from Arizona, Mr. Flake, is recognized for \r\n5 minutes to explain his amendment.\r\n Mr. Flake. I thank the Chairman. I thank Mr. Nadler for \r\nbringing this up. I have worked with Mr. Nadler and others on \r\nPATRIOT Act Reform Caucus and many of the amendments that we \r\nhave talked about were discussed within that group.\r\n Mr. Scott. Mr. Chairman, point of order. Have copies been \r\ndistributed?\r\n Mr. Flake. I am in the process.\r\n Mr. Smith. If the gentleman from Arizona will suspend just \r\nfor a minute while the amendment is distributed.\r\n [Pause.]\r\n Mr. Nadler. Would the gentleman yield for a question while \r\nwe are----\r\n Mr. Smith. Which gentleman?\r\n Mr. Nadler. Mr. Flake.\r\n Mr. Flake. I yield for a question.\r\n Mr. Smith. Before we proceed, I would like to make sure \r\nthat the amendment has been passed out. Without objection, the \r\namendment will be considered as read.\r\n [The amendment of Mr. Flake and Mr. Nadler follows:]\r\n \r\n \r\n Mr. Smith. The gentleman from Arizona is recognized for 5 \r\nminutes. And if he wants to yield for a question----\r\n Mr. Flake. I yield for a question.\r\n Mr. Nadler. My question is, just looking at this amendment \r\nright now, it says--the second part--by inserting ``for not \r\nmore than 90 days'' after ``may be extended.''\r\n Is that one 90-day extension, or is that a succession of--\r\n--\r\n Mr. Flake. It has to be in increments of 90 days.\r\n Mr. Nadler. In increments. But it is not limited to one?\r\n Mr. Flake. It is not limited to one.\r\n Mr. Nadler. Thank you.\r\n Mr. Flake. I will go ahead and explain the amendment. This \r\nis--we have had concern about the delayed notification. I have \r\nalways felt that we needed some better structure there. This, \r\nas I mentioned, has been an item that the PATRIOT Act Reform \r\nCaucus has been concerned about. We took 180 days; that is the \r\noutside edge right now that can be held. And we have codified \r\nthat. And then not-more-than-90-day extensions beyond that \r\ntime, in increments.\r\n And with that, I will yield back.\r\n Mr. Smith. The gentleman yields back his time. The \r\ngentleman from New York, Mr. Nadler, is recognized.\r\n Mr. Nadler. Thank you, Mr. Chairman.\r\n Mr. Chairman, I would have preferred, as my amendment a few \r\nminutes ago made clear, a shorter time periods, although, since \r\nin any event they are increments, they could amount to the same \r\nthing in the end, but more frequent judicial review. But \r\nputting 180 days, and 90-day increments after that, is a \r\nconstructive step forward. I commend Mr. Flake for it. And I \r\nwill certainly support the amendment.\r\n I notice that in the haste, it doesn't have the name of the \r\nsponsor on it. I assume the names of the sponsors will be Mr. \r\nFlake and a few others----\r\n Mr. Flake. I just asked unanimous consent to have it be \r\nconsidered the Flake-Nadler amendment.\r\n Mr. Nadler. And perhaps some others who wanted to, if they \r\nalso want to.\r\n Mr. Flake. That would be okay with me.\r\n Mr. Nadler. I thank the gentleman, and I urge everyone to \r\nsupport this very worthy amendment.\r\n Mr. Smith. The gentleman yields back his time. Are there \r\nany other members who wish to be heard on the amendment?\r\n If not, all in favor say aye? All opposed, nay?\r\n The ayes have it and the amendment is agreed to.\r\n Are there any other amendments? The gentleman from \r\nMichigan, Mr. Conyers, is recognized.\r\n Mr. Conyers. Mr. Chairman, I have an amendment at the desk \r\nand I ask that it be brought up at this time.\r\n Mr. Smith. The clerk will report the amendment.\r\n The Clerk. Mr. Chairman, I have two Conyers amendments.\r\n Mr. Conyers. This deals with the--the longer one, the three \r\nprovisions that comprise the bill.\r\n The Clerk. Amendment to H.R. 3199, offered by MR. Conyers. \r\nAt the end of the bill, add the following:\r\n Section ------. Reinstating the----\r\n Mr. Smith. Without objection, the amendment will be \r\nconsidered as read.\r\n [The amendment of Mr. Conyers follows:]\r\n \r\n \r\n Mr. Smith. The gentleman from Michigan is recognized for 5 \r\nminutes to explain his amendment.\r\n Mr. Conyers. Mr. Chairman and members of the Committee. In \r\n2001, everyone on this Committee agreed to the three provisions \r\nwhich I have now brought together under one proposal, which \r\nprovided necessary and reasonable checks on the Government.\r\n Problem: These provisions were removed when the bill went \r\nto the Rules Committee somewhere in the middle of the night \r\nbefore it came to the floor the next day.\r\n And here is what I propose in this bill, is that we restore \r\nthese three provisions, which I think are pretty \r\nstraightforward and are based on a rationale that we had \r\noriginally agreed to. The first is that the Government \r\nshouldn't be able to use electronic communications as evidence \r\nwhen they are illegally intercepted. The second is that the \r\nGovernment should have to report to Congress about disclosures \r\nof stored wire and electronic communications. And the third is \r\nthat we increase the amount of civil damages a person can \r\nrecover against those who willfully disclose stored \r\ncommunications.\r\n With reference to the first, we agreed to provide necessary \r\nand reasonable checks on the Government that they shouldn't be \r\nable to use electronic communications as evidence when they are \r\nillegally intercepted. Under current law, you recall, illegally \r\nobtained oral and wire intercepts can't be used by someone in \r\ncourt. However, illegally obtained electronic communications \r\ncan be, and what we do with this amendment is simply correct \r\nthat problem.\r\n For the second point, we want disclosures of stored wire \r\nand electronic communications reported to Congress, and I have \r\nprovided for that. Criminal wiretap and pen trap and trace \r\nstatutes already require similar reporting. This provision of \r\nmy amendment merely asks the Government to report on \r\ndisclosures of stored wire and electronic communications as \r\nwell.\r\n And finally, we increase the civil damages a person can \r\nrecover against those who willfully disclose stored \r\ncommunications. And this raises it from a pittance of $1,000--\r\n--\r\n Mr. Smith. The gentleman's time has expired. Without \r\nobjection, he will be recognized for an additional minute.\r\n Mr. Conyers. Thank you. We merely increased the damages to \r\n$10,000 in the order rather than $1,000, to ensure that the \r\ndisclosures don't occur.\r\n These are common-sense, reasonable protections originally \r\nagreed to by the Committee. I hope that that will occur again.\r\n Thank you for the time.\r\n Mr. Smith. Thank you, Mr. Conyers.\r\n The gentleman from California, Mr. Lungren, is recognized.\r\n Mr. Lungren. I rise in opposition to the amendment.\r\n Mr. Smith. The gentleman is recognized for 5 minutes.\r\n Mr. Lungren. Obviously, I was not here during the \r\nCommittee's consideration of the original PATRIOT Act. But in \r\nlooking at the gentleman's amendment, with respect to the \r\nsuppression provisions, it is my understanding that under \r\ncurrent law as passed there is a good faith exception, which is \r\nnot part of the gentleman's amendment. And I just wonder if \r\nthat is the intention of the gentleman.\r\n Mr. Smith. Is the gentleman here?\r\n Mr. Conyers. Yes. We add the stored--there is that \r\nprovision that you suggest, but it doesn't----\r\n Mr. Lungren. By court rule rather than statute, as I \r\nunderstand it, and yours would change it. Correct?\r\n Mr. Conyers. Exactly right. And we are just adding stored \r\nwire and electronic communications to be reported to the \r\nCongress, that the electronic communications as evidence that \r\nare illegally intercepted be excluded as court law, and that we \r\nraise the fine from $1,000 to $10,000.\r\n Mr. Lungren. All right, based on what the gentleman has \r\nsaid, I would have to oppose this amendment, because it seems \r\nto me that the good faith exception is one that is appropriate, \r\nparticularly in these cases. And again, as I understand what \r\nthe gentleman does is remove a good faith exception with \r\nrespect to the suppression part of his amendment--I don't speak \r\nto the other parts of his amendment because, frankly, I don't \r\nhave those before us.\r\n I yield back the balance of my time.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Smith. The gentleman has yielded back the remaining of \r\nhis time.\r\n Ms. Lofgren. I move to strike the last word.\r\n Mr. Smith. The gentlewoman from California, Ms. Lofgren, is \r\nrecognized.\r\n Ms. Lofgren. I won't use the 5 minutes. But I do think \r\nthat, certainly, my colleague from California, Mr. Lungren, was \r\nnot a member of the Committee when the PATRIOT Act was drafted. \r\nBut for those who were on the Committee at that time, I would \r\nhope and expect that they would vote once again for this \r\nlanguage. This was unanimously passed by the entire Committee, \r\nand I think we will be looking closely at members who voted for \r\nit once, expecting that they would be consistent in their vote \r\nthis time.\r\n And I would yield back.\r\n Mr. Smith. The gentlewoman yields back the balance of her \r\ntime. Are there any other members who wish to be heard on this \r\namendment?\r\n Ms. Lofgren. I ask unanimous consent to reclaim my time and \r\nyield it to Mr. Conyers.\r\n Mr. Smith. The gentlewoman yields the balance of her time \r\nto Mr. Conyers, then.\r\n Mr. Conyers. I just wanted the gentleman from California to \r\nknow that we are happy to include the good faith exception part \r\nthat he raised, because we have no--we are in agreement with \r\nit. We just want to make it clear, because that is not a point \r\nof contention between us.\r\n Mr. Smith. The gentlewoman yields back the balance of her \r\ntime.\r\n The vote is on the amendment. All in favor, say aye?\r\n Does the gentleman wish to continue to be recognized?\r\n Mr. Conyers. Yes. Mr. Chairman, I just ask unanimous \r\nconsent that, under 215(a)(2)(B), that we add ``or when done in \r\ngood faith.'' So it would read, (B) when done in good faith \r\nwhenever any wire, oral, or electronic communication has been \r\nintercepted.\r\n The point is to emphasize the good faith exception for \r\npurposes of clarification for anyone that might think that it \r\nis not involved.\r\n Mr. Smith. Without objection, so ordered.\r\n Now the vote----\r\n Mr. Scott. Reserving the right to object, I would like to \r\nask a question.\r\n Mr. Smith. The gentleman from Virginia, Mr. Scott.\r\n Mr. Scott. Is that in good faith pursuant to a warrant?\r\n Mr. Conyers. I don't know if the statute, Mr. Scott, speaks \r\nto whether there is a warrant involved or not. I think that \r\ngood faith would likely include it, but I can't tell you right \r\nnow that it would require a warrant or not. Not clear.\r\n Mr. Smith. We will now go to a vote on the amendment. All \r\nin favor----\r\n Mr. Feeney. Mr. Chairman?\r\n Mr. Smith. Who wishes to be recognized?\r\n Mr. Feeney. Mr. Chairman, I understood that there was a \r\nunanimous consent request, and if it is timely, I would like to \r\nobject to that.\r\n Mr. Smith. There was a unanimous consent request and no one \r\nwas recognized in an objection.\r\n Mr. Feeney. I thought we were still on questions and \r\ndiscussion about the unanimous consent request.\r\n Mr. Chairman, I will, given the confusion, withdraw the \r\nobjection.\r\n Mr. Smith. Okay, without objection the gentleman can \r\nwithdraw his objection. We will now proceed to a vote on the \r\namendment.\r\n All in favor, say aye? All opposed, say nay?\r\n The nays appear to have it. The amendment is not agreed to.\r\n Mr. Conyers. Could I get a record vote?\r\n Mr. Smith. And a record vote has been requested. The clerk \r\nwill call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n [No response.]\r\n The Clerk. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n [No response.]\r\n The Clerk. Mr. Feeney?\r\n Mr. Feeney. No.\r\n Mr. King. No.\r\n The Clerk. Mr. Feeney, no. Mr. King, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n [No response.]\r\n The Clerk. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Mr. Smith. Are there any other members who wish to vote or \r\nchange their vote? The gentleman from North Carolina, Mr. \r\nCoble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Mr. Smith. The gentleman from Ohio, Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Mr. Smith. The gentleman from California, Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Mr. Smith. The gentleman from California, Mr. Lungren.\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no.\r\n Mr. Smith. The gentleman from Florida, Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Mr. Smith. Any other member who wishes to vote or change \r\ntheir vote? If not, the clerk will----\r\n The gentleman from Massachusetts?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye.\r\n Mr. Smith. The gentleman from California, Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye.\r\n Mr. Smith. Any other members? If not, the clerk will \r\nreport.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.\r\n Mr. Smith. The amendment is not agreed to.\r\n Are there any other----\r\n Mr. Nadler. Mr. Chairman?\r\n Mr. Smith. The gentleman from New York, Mr. Nadler, is \r\nrecognized.\r\n Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at \r\nthe desk. This is labeled ``Gag Order.''\r\n Mr. Smith. Does the clerk have the amendment?\r\n Mr. Nadler. It says, ``Sec. ___. Gag Order.''\r\n The Clerk. Mr. Chairman, I don't have that amendment at the \r\ndesk.\r\n Mr. Smith. While we are getting that amendment----\r\n Mr. Nadler. Well, there it comes.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Nadler of \r\nNew York. Insert at the appropriate place----\r\n Mr. Chabot. Mr. Chairman, reserving a point of order.\r\n Mr. Smith. The gentleman from Ohio reserves a point of \r\norder. The clerk will proceed.\r\n The Clerk. --insert at the appropriate place in the bill \r\nthe following:\r\n Sec. ___. Gag Order.\r\n (a) In General. Section 2709(c) of title 18, United States \r\nCode, is amended to read as follows:\r\n ``(c) Prohibition of Certain Disclosure.''\r\n ``(1) In General. No wire or electronic communications \r\nservice provider, or officer, employee, or agent thereof, shall \r\ndisclose to any person that the Federal Bureau of Investigation \r\nhas sought or obtained access to information or records under \r\nthis section for 90 days--''\r\n Mr. Smith. Without objection, the amendment will be \r\nconsidered as read.\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Smith. The gentleman from New York is recognized for 5 \r\nminutes to explain his amendment.\r\n Mr. Nadler. Thank you, Mr. Chairman.\r\n Mr. Chairman, Section 505 of the PATRIOT Act authorizes \r\nfield office--now, we have been talking at some length at \r\ndifferent times today and on the floor of the House about \r\nSection 215 of the PATRIOT Act, which enables a FISA court to \r\ngrant orders for certain collections of personal information. \r\nSection 505 of the PATRIOT Act authorizes FBI field office \r\ndirectors to collect in secret, without any court \r\nconsideration, almost limitless sensitive personal information \r\nfrom entities that are not themselves under investigation--that \r\nis, bookstores, travel agents, Internet service providers, and \r\nso forth--but have customers whose records the Government \r\nwants, by simply issuing a National Security Letter carrying \r\nthe weight of law and the FBI's own assertion that the request \r\nis relevant to a national security investigation.\r\n These National Security Letters, or NSLs, empower the FBI \r\nto amass personal documents without a judge signing off on a \r\nsearch warrant, without any other external check, such as a \r\ngrand jury or even a FISA court. The target of the NSL will \r\nnever know of its existence, partly because the recipient of \r\nthe NSL is gagged from disclosing the demand, again as in \r\nSection 215.\r\n This secret search power has been the subject of a court \r\nchallenge in Federal court in New York. In Doe v. Ashcroft, the \r\nFederal court judge in the Southern District of New York ruled \r\nthat this provision, that the National Security Letters \r\nprovision of the PATRIOT Act is unconstitutional. The court \r\nheld that the absence of judicial review--and when I say \r\n``judicial review'' here, I don't mean review of the order, the \r\nfact that you can give this out without any judge ever seeing \r\nit--violates the Fourth Amendment right to be free from \r\nunreasonable searches and seizures, and the statutory \r\nprohibition against disclosing the FBI request to any person \r\nviolates the First Amendment right to freedom of speech. And \r\nthat means--``any person'' means any person, including your \r\ncounsel. So you can't even tell your lawyer so you can move to \r\nquash.\r\n The current language continues the unconstitutional \r\npermanent secrecy order contained in the existing FISA business \r\nrecords provision. To be constitutional, case law establishes \r\nthat a secrecy order amounting to a prior restraint on speech, \r\nas this is, must be imposed by a court, not unilaterally by a \r\nGovernment, must be imposed on the basis of a meaningful \r\nstandard that amounts to a compelling Government interest, must \r\nbe temporary, and must allow for objectors to explain why the \r\nprior restraint is unjustified.\r\n What this amendment does is seek to make the gag order \r\nprovision of the Section 505 National Security Letters comply \r\nwith the Constitution. And it does that by saying, in essence, \r\ntwo things. It says that to get the gag order, you have to ask \r\na court for it, and that the court can grant it upon a showing \r\nof various standards, that failure to keep it secret would \r\nendanger the life or physical safety of someone, would raise \r\nthe danger of a flight from prosecution, would result or could \r\nresult in the destruction or tampering with evidence, \r\nintimidation of potential witnesses, or otherwise seriously \r\nendanger the national security of the U.S., et cetera, et \r\ncetera--the catchall clause that some of us objected to in \r\nSection 215. The court could order this for 90 days and could \r\norder 180-day renewals indefinitely.\r\n So what this does, essentially, is make the gag order \r\nprovision constitutional by saying you have to ask a court for \r\nit, the court can grant it for 90 days, and you can get 180-day \r\nextensions upon these showings. Let me just say that these \r\nshowings are the same showings that are in Section 215. \r\nAlthough we wanted to take out the catchall provision, in this \r\namendment we haven't taken out the catchall provision. So it is \r\nthe same showings that we have in Section 215, which everybody \r\nhere has agreed to, except some of us who think it is too \r\nbroad.\r\n So I would urge adoption of this amendment so that the gag \r\norder provision of Section 505 will be constitutional and so \r\nthat it is a better thing to do, even if the Constitution \r\ndidn't require it.\r\n Mr. Smith. And the gentleman yields back his time.\r\n Mr. Nadler. I yield back.\r\n Mr. Smith. Does the gentleman from Ohio insist on his point \r\nof order?\r\n Mr. Chabot. No, Mr. Chairman, I withdraw my point of order.\r\n Mr. Smith. If not, the point is withdrawn.\r\n The gentleman from Florida, Mr. Feeney, is recognized.\r\n Mr. Feeney. Move to strike the last word.\r\n Mr. Smith. The gentleman is recognized for 5 minutes.\r\n Mr. Feeney. I have the same objection to this reversal of \r\nthe burden and putting it back on the Justice Department to \r\nmaintain some secrecy in their investigation as I had on the \r\nprevious amendment that dealt with 215.\r\n The nature of these investigations is such that 180 days is \r\nan awfully unreasonably short period of time. These \r\ninvestigations typically take not months, but years. In \r\naddition to that, this type of disclosure would require Federal \r\ninvestigators to tip off potential suspects, friends, \r\nassociates of suspects, giving them a chance to go into hiding, \r\nto flee, to move up their potential terrorist attack--in other \r\nwords, adjust themselves because we are once again putting all \r\nof our cards on the table in a very dangerous business.\r\n In The Center for National Security Studies v. The U.S. \r\nDepartment of Justice, a D.C. Circuit case in 2003, the court \r\nsaid that these types of disclosures would inform terrorists \r\nabout the substantive and geographic focus of the \r\ninvestigation, would inform terrorists which of their members \r\nwere compromised by the investigation and which were not, could \r\nallow terrorists to better evade the ongoing investigation and \r\nmore easily formulate or revise counter-efforts.\r\n I think for all those reasons, these artificial deadlines \r\nand changing the burden of proof back to the Government as they \r\nfight terrorists is a bad idea----\r\n Mr. Nadler. Would the gentleman yield.\r\n Mr. Feeney. I will yield.\r\n Mr. Nadler. Thank you. Well, first of all, we are not \r\nchanging the burden of proof. The standard in the amendment, as \r\nyou will see, is if the court determines there is reason to \r\nbelieve--``reason to believe'' is a very low standard. That is \r\nnot the burden of proof. It is not a preponderance of evidence, \r\nit is not proof, you know, by anything. There is reason to \r\nbelieve. And there is reason to believe what? Reason to believe \r\nany of the things that the gentleman from Florida said might \r\nhappen.\r\n Yes, I agree with you, sir. In very many cases disclosure \r\nwould result in unfortunate things such as you mentioned. All \r\nyou have to show to the court is that there is reason to \r\nbelieve that the disclosure in this case would result in any of \r\nthose, in any----\r\n Mr. Smith. The gentleman's time has expired.\r\n Mr. Nadler. I ask for unanimous consent to an additional 2 \r\nminutes?\r\n Mr. Smith. Without objection, the gentleman from Florida is \r\ngiven an additional minute.\r\n Mr. Feeney. I request an additional minute, 30 seconds of \r\nwhich I will yield to the gentleman from New York.\r\n Mr. Nadler. Thank you. If we don't do this, the courts have \r\nheld that a gag order, especially on something which no court \r\nhas seen, is unconstitutional unless you have given some reason \r\nto a court to agree to the gag order. You have to do that; \r\notherwise, it is going to be flatly unconstitutional.\r\n All we are saying here, it is not a burden of proof. We are \r\nnot giving the burden of proof to anybody. You have to convince \r\nthe court there is reason to believe that any of these negative \r\nthings would happen--not that definitely would, not even that \r\nit probably would.\r\n Mr. Feeney. Well, reclaiming my time. At a minimum, this \r\nwould put the burden back on the Government for every single \r\ninvestigation that is ongoing out there, where there is a NSA \r\nletter out there, with respect to every one of the third-party \r\nentities, to go back into court every 6 months. It would be an \r\nenormous paperwork burden, unnecessary. And to the extent that \r\nthere may be some things that we can do probably with a much \r\nlonger time period to ultimately comply with whatever concerns \r\nthe court has, there may be a chance to remedy that in the \r\nfuture. But 180 days is clearly too short.\r\n With that, I yield back to the Chairman.\r\n Mr. Smith. The gentleman yields back his time.\r\n Any other members who wish to be heard?\r\n The gentlewoman from California, Ms. Lofgren.\r\n Ms. Lofgren. I move to strike the last word.\r\n Mr. Smith. The gentlewoman is recognized for 5 minutes.\r\n Ms. Lofgren. We did receive some information on how often \r\nthis has been used, and it is not an astonishingly large number \r\nof times. So to think that there would be, assuming that the \r\nDepartment of Justice is being truthful to us--and I am not \r\nsuggesting otherwise--this would not create a very substantial \r\nburden on the Department, number one.\r\n Number two, the historical record is that this has not been \r\nused very often. Well, it is not going to be used at all in the \r\nfuture because it is unconstitutional. And so, actually, Mr. \r\nNadler is--I support the amendment with some reservations \r\nbecause this amendment would actually revive this section of \r\nthe act and possibly make it constitutional. And with \r\nstandards.\r\n And, you know, I guess the Republicans can reject it and \r\nhave nothing, or they can have some standards that meet \r\nconstitutional muster and have something. The choice is really \r\nyours. I think that, as I say, I support the amendment with \r\njust some reservations because I think the court ruling of \r\nunconstitutionality may actually be a preferable result. But \r\nthat is on its way up, and there is some doubt as to what the \r\nSupreme Court will ultimately do.\r\n Mr. Nadler. Would the gentlelady yield?\r\n Ms. Lofgren. I would be happy to yield to the gentleman.\r\n Mr. Nadler. Thank you. I appreciate the gentlelady's \r\nremarks.\r\n And I would again say this has been held unconstitutional \r\non two grounds. This amendment would cure one of those grounds. \r\nI am going to have a different amendment to cure the other \r\nground. The other ground says that it is unconstitutional to \r\nissue--to have this search in the first place without at least \r\na--without a court agreeing to it. Even in Section 215, you \r\nhave a FISA court agreeing to it. Here, you have nobody except \r\nan FBI field office director directing it.\r\n But what this amendment deals with is the gag order. You \r\ncan't have a prior restraint on speech such as a gag order \r\nwithout a court agreeing to it for some good reason. That is \r\nelementary constitutional law. The court in New York said that. \r\nIt is prior case law. If we don't take this amendment, it is \r\njust going to be unenforceable.\r\n Now, when you say the burden of proof, this is a very minor \r\nburden. Some reason to believe. Some reason to believe; we have \r\nthe catchall provision: otherwise seriously endangering the \r\nnational security of the U.S. by alerting a target, a target's \r\nassociates, or a foreign power of which the target is an agent \r\nof the Government's interest in the target.\r\n If the Government can't convince a judge that there is some \r\nreason to believe that this should be held secret, then it \r\nprobably shouldn't be held secret. And if we value any kind of \r\nliberty, we will have this burden to go to courts. That is the \r\nwhole point of the Fourth Amendment and the Bill of Rights.\r\n Ms. Lofgren. Reclaiming my time.\r\n Mr. Nadler. I appreciate your yielding.\r\n Ms. Lofgren. I would just note--I mean, having worked on \r\nthe original PATRIOT Act, it is hard not to contrast how this \r\nprocess is working here today with how the process worked after \r\n9\/11. After 9\/11, members on both sides of the aisle worked in \r\ngood faith together to come up with an act that would, we \r\nhoped, make us safer. Mr. Nadler has offered this amendment in, \r\nreally, that 9\/11 spirit. At that other time, this amendment \r\nwould have been seen for what it is, an amendment that actually \r\ncures a defect in the bill that has rendered a section \r\nunenforceable. And because these votes are not on a party-line \r\nbasis, there has been no real meeting of the minds, no \r\ndeliberation, no discussion, the majority is going to reject an \r\namendment that actually serves the interest of curing the \r\ndefect that the court has found.\r\n Mr. Conyers. Would the gentlelady----\r\n Ms. Lofgren. I would yield to the Ranking Member.\r\n Mr. Conyers. I just want to point out that Mr. Nadler's \r\nproposal here is uncharacteristically cooperative. I mean, he \r\nis saving a part of the PATRIOT Act and it is almost going \r\nunnoticed. Thanks to the gentlelady from California for \r\npointing out that, without this, the continued \r\nunconstitutionality is going to likely continue on.\r\n And there is a sort of attitude that the Department of \r\nJustice has here that should be noted, that when they finally \r\nhad to comply with the Freedom of Information Act, they blacked \r\nout the six-page list of National Security Letters so that \r\nnobody could figure out anything about anything.\r\n Ms. Lofgren. Reclaiming my time, though, we do have access \r\non a confidential basis to that information. And without saying \r\nany numbers, we can assert honestly that it is not an undue \r\nburden. And I do so assert.\r\n So I think the majority is being foolish in this case, but \r\nwelcome to it.\r\n I yield back.\r\n Mr. Smith. The gentlewoman yields back her time.\r\n The question is on the amendment. All in favor, say aye? \r\nAll opposed, nay?\r\n The nays have it.\r\n A recorded vote has been requested. The clerk will call the \r\nroll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n [No response.]\r\n The Clerk. Mr. Jenkins?\r\n [No response.]\r\n The Clerk. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n [No response.]\r\n The Clerk. Mr. Hostettler?\r\n [No response.]\r\n The Clerk. Mr. Green?\r\n [No response.]\r\n The Clerk. Mr. Keller?\r\n [No response.]\r\n The Clerk. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n [No response.]\r\n The Clerk. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n [No response.]\r\n The Clerk. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Mr. Smith. Are there any members who wish to vote or change \r\ntheir votes? The gentleman from Florida, Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no.\r\n Mr. Smith. The gentleman from Tennessee, Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no.\r\n Mr. Smith. The gentleman from North Carolina, Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Mr. Smith. The gentleman from California, Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Mr. Smith. The gentleman from within, Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no.\r\n Mr. Smith. The gentleman from Indiana, Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no.\r\n Mr. Smith. The gentleman from Florida, Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Mr. Smith. The gentleman from South Carolina, Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no.\r\n Mr. Smith. The gentleman from California, Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye.\r\n Mr. Smith. The other gentleman from California, Mr. \r\nLungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no.\r\n Mr. Smith. The gentleman from Massachusetts, Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye.\r\n Mr. Smith. The gentleman from California, Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye.\r\n Mr. Smith. And the clerk will report.\r\n The Clerk. Mr. Chairman, there are 14 ayes and 23 noes.\r\n Mr. Smith. The amendment is not agreed to.\r\n Are there any other amendments? The gentleman from \r\nCalifornia, Mr. Schiff.\r\n Mr. Schiff. Mr. Chairman, I have an amendment at the desk, \r\nnumber 87.\r\n Mr. Smith. The clerk will report the amendment. Does the \r\nclerk have the amendment?\r\n The Clerk. I do now, sir.\r\n Mr. Smith. Okay.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Schiff of \r\nCalifornia. Add at the appropriate place the following: Section \r\n___. Naturalization Benefits for Victims of September 11----\r\n Mr. Chabot. Mr. Chairman, reserving the right to object.\r\n Mr. Smith. The gentleman from Ohio reserves the right to \r\nobject.\r\n Mr. Chabot. Point of order.\r\n Mr. Smith. Raises a point of order.\r\n The Clerk. Subtitle C of Title 4 of the US PATRIOT Act as \r\namended by inserting after Section 421----\r\n Mr. Smith. Without objection, the amendment will be \r\nconsidered as read.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Smith. The gentleman from California is recognized for \r\n5 minutes to explain his amendment.\r\n Mr. Schiff. Thank you, Mr. Chairman. This amendment would \r\ngrant citizenship to the spouses and children of legal \r\nimmigrants who were killed on September 11th as well as grant \r\nhonorary citizenship to those legal immigrants who were killed \r\nin the attacks. When American citizens, foreign nationals, and \r\nimmigrants perished on September 11th, the immigration status \r\nof hundreds of families was thrown into turmoil. Hundreds of \r\ntemporary workers and immigrants died shoulder to shoulder with \r\nthousands of Americans.\r\n My amendment is based on legislation by Representative \r\nMaloney and Senator Corzine, and it would bestow honorary \r\ncitizenship on legal immigrants and non-immigrants who died in \r\nthe disaster. Perhaps more important, the bill would offer \r\ncitizenship to surviving spouses and children subject to a \r\nbackground investigation by the FBI.\r\n This is germane because the PATRIOT bill provided for \r\nexactly this relief, but there was a deadline in the PATRIOT \r\nbill that a number of people missed for filing for status. In \r\nthe spirit of fairness and unity, it's appropriate as we \r\nreauthorize the PATRIOT bill to extend this deadline, a short \r\nextension, to provide the privilege of citizenship to the \r\nfamilies who lost so much because of this attack on the United \r\nStates.\r\n Mr. Chairman, I yield back the balance of my time.\r\n Mr. Smith. Does the gentleman from Ohio insist on his point \r\nof order?\r\n Mr. Chabot. Yes, I do.\r\n Mr. Smith. The gentleman is recognized to explain his point \r\nof order.\r\n Mr. Chabot. Thank you, Mr. Chairman. I make a point of \r\norder that the amendment is not germane under House Rules. H.R. \r\n3199 reauthorizes certain provisions of the PATRIOT Act and the \r\nIntelligence Reform and Terrorism Prevention Act. House Rule \r\nXVI-7 precludes amendments on a subject different from that \r\nunder consideration. This amendment is outside the subject \r\nmatter of the legislation we are considering at today's markup.\r\n In addition, the fundamental purpose of this amendment is \r\ninconsistent with the primary purpose of the bill under \r\nconsideration and, thus, non-germane under House Rule XVI-7.\r\n I yield back the balance of my time.\r\n Mr. Smith. Does the gentleman from California wish to be \r\nheard on the point of order?\r\n Mr. Schiff. I do, Mr. Chairman.\r\n Mr. Smith. The gentleman is recognized.\r\n Mr. Schiff. And I understand that the concept of \r\ngermaneness in this hearing has been somewhat malleable, but \r\nwhereas the PATRIOT bill provided this grant of citizenship to \r\nthe families of those who were lost on 9\/11, and this merely \r\nextends the date in which you can apply for that citizenship, \r\nit's pretty directly related to the PATRIOT bill and changes \r\nthat were made specifically in the PATRIOT bill. It's hard to \r\nimagine if it's not germane to the reauthorization of the \r\nPATRIOT bill what it would be germane to. So I would urge the \r\nChair to reject the point of order.\r\n Mr. Weiner. Mr. Chairman?\r\n Mr. Schiff. And I'd yield the balance of my time to the \r\ngentleman from New York.\r\n Mr. Weiner. I'd just like to be heard on the point of \r\norder. Previously, Mr. Hostettler offered an amendment dealing \r\nwith immigration matters that were not within the purview of \r\nthe bill. Since he was recognized before it could be deemed to \r\nbe out of order, although he withdrew the amendment, it was \r\nconsidered by this Committee. I would deem that the door has \r\nnow been open for similar amendments that deal with immigration \r\nmatters, which is something that I think whether we open it or \r\nnot, we certainly have an opportunity here to rectify an \r\ninequity and perhaps, you know, move the--further kick the can \r\ndown the field on whether or not this is germane. But certainly \r\nthe Hostettler amendment considered an immigration matter that \r\nwas not in the Sensenbrenner bill.\r\n And I would just reiterate something else. You know, the \r\nnotice on this hearing said we were reauthorizing the PATRIOT \r\nAct. The bill that we're considering is called the PATRIOT Act \r\nReauthorization Act. The memo that accompanied this debate is \r\ncalled the reauthorization of the PATRIOT--refers to it as the \r\nreauthorization of the PATRIOT Act. So I would argue that it is \r\ngermane because the PATRIOT Act spoke to this.\r\n Mr. Smith. The Chair is prepared to rule. First of all----\r\n Ms. Jackson Lee. Mr. Chairman, I'd like to speak to the \r\npoint of order.\r\n Mr. Smith. Does the gentleman from California wish to yield \r\nto the gentlewoman from Texas?\r\n Ms. Jackson Lee. I can strike the last word.\r\n Mr. Schiff. Yes, Mr. Chairman, I'd be happy to yield.\r\n Ms. Jackson Lee. I thank the distinguished gentleman from \r\nCalifornia, and I rise to support his amendment and to make a \r\npoint to the point of order, Mr. Chairman. In particular, might \r\nI say forthrightly that a point of order, that the--it can be \r\nwaived, and I would argue that Mr. Schiff's point that this is \r\nnot so much an immigration amendment as it is a procedural, \r\nthat it asks for an extension, the good will that can generate \r\nfrom providing for children who suffered the tragic loss on 9\/\r\n11 and, therefore, were given citizenship or were to be given \r\ncitizenship, as were citizenship given to adult spouses, and \r\nnow that they have not been able to fall under that time frame \r\nit is merely procedural. And I think that this Committee could \r\nyield to the procedural point and not consider this an \r\nimmigration point. It is necessary, I think, if we are to be, \r\none, a country of laws and immigrants or immigration, a country \r\nof laws and liberty, that we make good on our promise. And this \r\namendment makes good on our promise, and I would argue that Mr. \r\nSchiff's amendment be made in order because it is a procedural \r\namendment, it is not an immigration amendment.\r\n And I yield back my time.\r\n Mr. Smith. The Chair is prepared to rule. For two reasons, \r\nthis particular amendment is not germane. First of all, when an \r\namendment is offered and withdrawn, that does not open the door \r\nto similar amendments. Second of all, when an amendment deals \r\nwith a subject that is not under consideration, it's in \r\nviolation of House Rule XVI, and that is how I see it. The \r\namendment is not germane, and are there any other amendments?\r\n Are there any other amendments? The gentleman from \r\nVirginia, Mr. Scott, is recognized.\r\n Mr. Scott. Mr. Chairman, I have an amendment at the desk, \r\nScott 029, additional requirements for multi-point electronic \r\nsurveillance under FISA.\r\n Mr. Smith. The clerk will read the amendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of \r\nVirginia. Add at the end the following: Section 9. Additional \r\nrequirement for multi-point electronic surveillance under FISA. \r\nSection 105(c) of the Foreign Intelligence Surveillance Act of \r\n1978, 50 U.S.C. 1805(c), is amended, before the semicolon at \r\nthe end of paragraph (1)(e) the following: :, and, in \r\ncircumstances where the nature and location of each of the \r\nfacilities or places at which the surveillance will be directed \r\nis unknown when the order is issued, that surveillance may be \r\ndirected at a place or a facility only for such time as the \r\napplicant believes that such facility or place is being used or \r\nis about to be used by the target of the surveillance.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Mr. Smith. The gentleman from Virginia is recognized for 5 \r\nminutes to explain his amendment.\r\n Mr. Scott. Thank you, Mr. Chairman.\r\n Mr. Chairman, this is the ascertainment requirement for a \r\nroving wiretap. When you get a roving wiretap, you get a \r\nwiretap against the person, and you can place the bug wherever \r\nthat person may be using the phone. This amendment requires \r\nthat in a FISA wiretap--and remember, under FISA you don't need \r\nprobable cause of a crime. You just need probable cause that \r\nthe person is an agent of a foreign government and you might \r\nget some--any kind of foreign intelligence which could be a \r\ntrade deal or anything else. No crime involved.\r\n This amendment requires that in a FISA wiretap, the \r\nGovernment has to have good faith that the target of the \r\nwiretap is actually using the phone or computer during the time \r\nit's being surveyed. When the target leaves the building, you \r\ngot to stop listening.\r\n Now, this is similar to the ascertainment requirement of \r\nroving wiretaps in criminal cases because when the phone or \r\ncomputer surveilled could be that of an innocent person, next-\r\ndoor neighbor, acquaintance, or anybody else, it could be the \r\npay phone on the corner, it could be the phone at the country \r\nclub. All this amendment requires is that it be ascertained \r\nthat the target is actually there before you start listening. \r\nAnd if the target leaves, you stop listening.\r\n This requirement would not only protect the privacy of \r\ninnocent, non-involved third parties who may be U.S. citizens, \r\nbut would also discourage the misuse of the authority to bypass \r\ntraditional law enforcement procedures by using the FISA \r\nwiretap to place a bug somewhere where you actually want to \r\nlisten to somebody else. This says if you're going to listen to \r\nsomebody on a roving wiretap that the person you listen to is \r\nactually the target of the--of the wiretap. And I would hope \r\nthat we would adopt the amendment.\r\n Mr. Smith. The gentleman from California, Mr. Issa, is \r\nrecognized.\r\n Mr. Issa. Thank you, Mr. Chairman. And I guess this is a \r\nlittle bit of deja vu all over again. One of the reasons that \r\nit is so important to remain as it is is that this roving \r\nwiretap was envisioned more than any other single area to deal \r\nwith the disposable cellular phone wiretap situation. Now, just \r\nbecause you stop using one of 5, 10, 15, 20 cellular phones \r\ndoesn't mean you won't use it again the next minute. So every \r\nsingle time a cellular phone in which the agents have no idea \r\nwhere that cellular phone is until it turns on and they have no \r\nidea who's on it until they hear that it's being talked on, \r\nthey're not in a position to say we're not going to.\r\n Now, as a practical matter, we are, in fact, looking after \r\njust 10 days of a movement to another phone. So when they go \r\nfrom phone A to phone B, even if they may go back to phone A, \r\nthey're still in front of a judge within 10 days. So there is a \r\nreview process envisioned here. There's no question that I \r\nappreciate the gentleman's concern. But I think that his \r\namendment would clearly undo exactly what we need to maintain.\r\n Now, having said that, our review of the actual use has \r\nfound no abuses, but I think that it's very clear here that the \r\nintent of the legislation 4 years ago, the intent of the \r\nreauthorization today requires that you be able to figure out \r\nwho's on cell phone number 2, 3, 4, 5, 6, 7, and 8. Even though \r\nthat person may not have been on them in 30 days, there is no \r\nreason to believe, particularly if you don't know where it is \r\nuntil it turns on, that it's not your suspect again.\r\n With that, I would yield back.\r\n Mr. Scott. Would the gentleman yield?\r\n Mr. Issa. I would certainly yield.\r\n Mr. Scott. Should the FBI listen if they actually do not \r\nbelieve that the phone is going to be used by the target?\r\n Mr. Issa. You know, I think, reclaiming my time, as the \r\ngentleman knows, that when a tap detects something and they're \r\nout--you know, just like on the television, when they're out \r\nthere in the truck and they're digitally recording this, and \r\nthey discover it's not their suspect, they tune out, they're \r\ndone. That is pretty standard. And there has--there is review \r\nof any material that would be captured in which it was clear \r\nthat for some period of time they listened beyond knowing that \r\nit wasn't their suspect. So that's well protected within the \r\nlaw, certainly well protected by the 10-day judicial review of \r\nmoving on wiretaps.\r\n But, yes, as a practical matter, if you've got cell phone \r\nnumber 6 and it hasn't been used in 4 days and it gets turned \r\nback on, you do have to find out who's speaking on it, and you \r\ncan't do that by saying, well, I can't do it until I know that \r\nit's our suspect. It's just the opposite. You can't stop \r\nlistening until you know it's not your suspect.\r\n And with that I'd yield back.\r\n Mr. Conyers. Mr. Chairman?\r\n Mr. Smith. Any other members who wish to be heard? The \r\ngentleman from Michigan, Mr. Conyers, is recognized.\r\n Mr. Conyers. Mr. Chairman, the gentleman from California's \r\npoint is in no way in conflict with the amendment of the \r\ngentleman from Virginia. If you have a good faith--if a phone \r\ngoes off for a while, it doesn't mean that you can't continue \r\nto tap it when it goes back on. You know it either is or isn't. \r\nAnd that is part of a good-faith belief that the target is \r\nactually using the phone during the time it's being surveilled.\r\n So the dramatic example pointed out by my friend from \r\nCalifornia in no way contradicts the requirement of having a \r\ngood-faith belief, which is provided in the amendment of the \r\ngentleman from California.\r\n Mr. Scott. Would the gentleman yield?\r\n Mr. Conyers. Of course.\r\n Mr. Scott. Thank you, and I thank the gentleman for \r\nyielding. This is the same thing they do in Title 3 wiretaps. \r\nThey have to ascertain that the person is actually using the \r\nphone. Otherwise, they have to stop listening.\r\n These phones--this is particularly egregious because you \r\nstart this thing out without any probable cause of a crime. You \r\ncan place these roving wiretaps wherever.\r\n Mr. Issa. If the gentleman would yield, I would \r\nrespectfully disagree. These are similar but not the same as \r\nTitle 3. In fact, the PATRIOT Act did not modify these. What \r\nyou're seeking to do here is to modify language that was not \r\ncreated by the PATRIOT Act. The truth is that what we're \r\nrelying on is a standard that existed prior to the PATRIOT Act \r\nwhen it came to how you would monitor. We did go to multiple \r\nand roving, but we didn't change the underlying requirement for \r\nminimization.\r\n Mr. Smith. The gentleman from Michigan has the time.\r\n Mr. Scott. Would the gentleman from Michigan yield?\r\n Mr. Conyers. Certainly.\r\n Mr. Scott. Was there--my understanding was that there was \r\nno minimization requirement in the PATRIOT Act. We created a \r\nroving wiretap, and all this is is a minimization requirement \r\nto ascertain that the person that you're trying to surveill is \r\nthe only actually using the phone. Otherwise, without this \r\namendment, when the person leaves the premises, you keep \r\nlistening in. And, you know, if that's your point, then just \r\nsay so. You're using it to listen in to anybody that may use \r\nthe pay phone on the corner.\r\n Mr. Issa. If the gentleman from Michigan would yield?\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Conyers. Just a moment. Mr. Scott said that if you \r\ndidn't have a good-faith belief, you couldn't do it. But if you \r\ndo have a good-faith belief, which is all he's asking, that's \r\nabout as low a threshold as you can get that it's appropriate. \r\nIf the phone's been cut off for a while and it goes back on and \r\nyou're listening, and it turns out that it's the same person \r\nthat was being surveilled, then you're home free. But good \r\nfaith--I don't know--I don't know how we could be talking about \r\nsomething other than good faith.\r\n I yield to the gentleman from Virginia.\r\n Mr. Scott. Again, I'd just say if you do not believe that \r\nthe person is--the target is using the phone, you ought to stop \r\nlistening. This says if the applicant believes that the \r\nfacility or place is being used or about to be used by the \r\ntarget of surveillance, that you believe that you're listening \r\nto the target.\r\n Mr. Issa. If the gentleman from Michigan would yield.\r\n Mr. Scott. If you don't believe----\r\n Ms. Lofgren. Could the gentleman yield----\r\n Mr. Scott. If you're listening to everybody, just say so.\r\n Mr. Conyers. The gentlelady from California first, sir, \r\nand----\r\n Ms. Lofgren. I think my colleague from California has \r\nindicated that magically the minimization rules in criminal law \r\nhave been transported without language to that effect, as far \r\nas I can recall, into the PATRIOT Act. And I think, you know, \r\nit's possible--I don't know--that the Justice Department has, \r\nin fact, applied the minimization rules to these FISA taps. But \r\nif that's true--that would be good--we ought to put that into \r\nstatute and not allow regulatory schemes that could change \r\ndepending on who is running the Justice Department to govern \r\nit. And it seems to me that, you know, this--that's what this \r\namendment would do. We could probably change the words to some \r\nextent if we wanted to, but I think basically that's the intent \r\nof this, and it's an important thing to do.\r\n Mr. Issa. If the gentleman would yield briefly.\r\n Ms. Lofgren. And I would yield back to----\r\n Mr. Conyers. Of course, I yield to my friend from \r\nCalifornia.\r\n Mr. Issa. I would say that I'd be happy to readdress this \r\nafter the gentleman views the classified minimization that \r\nalready exists under FISA so that you can have the comfort \r\nthat, prior to the PATRIOT Act, under the existing statute for \r\nFISA we already have its own minimization language and that we \r\nshould rely on that, and I would ask us to vote against this. \r\nBut I certainly, after you've reviewed that, would be happy \r\nto----\r\n Mr. Smith. The gentleman's time has expired. The question \r\noccurs on the amendment. All in favor say aye? All opposed, \r\nnay?\r\n The nays have it. The amendment is not agreed to. Are \r\nthere----\r\n Mr. Scott. A recorded vote.\r\n Mr. Smith. A recorded vote has been requested. The clerk \r\nwill call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren? Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n [No response.]\r\n The Clerk. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n [No response.]\r\n The Clerk. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. [Presiding.] Members in the chamber \r\nwho wish to cast or change their votes? The gentleman from \r\nNorth Carolina, Mr. Coble.\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. The gentleman from Utah, Mr. \r\nCannon.\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nGoodlatte.\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 13 ayes and 23 noes.\r\n Chairman Sensenbrenner. The amendment is not agreed to.\r\n Are there further amendments?\r\n Mr. Schiff. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff.\r\n Mr. Schiff. Mr. Chairman, I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. America to H.R. 3199, offered by Mr. Schiff of \r\nCalifornia. At the end add the following: Section. Oversight of \r\nNational Security Letters. (a) Title 18, United States Code, \r\nSection 2709(e) of Title 18, United States Code is amended by \r\nstriking----\r\n Mr. Schiff. Mr. Chairman, I request that the amendment be \r\ndeemed as read.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Mr. Schiff follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentleman from California is \r\nrecognized for 5 minutes.\r\n Mr. Schiff. Mr. Chairman, I view this amendment as a \r\ncounterpart of the 10-year sunset, and that is, because we have \r\napproved such a long sunset, this would impose more substantial \r\nreporting from the Department of Justice to the Committee and \r\nto the public about the frequency in which certain of these \r\nPATRIOT Act provisions are being utilized, like the national \r\nsecurity letters, like the delayed notification of search \r\nwarrants, the 215 section items. And most of what is requested \r\nin this additional reporting are things akin to what the Chair \r\nrequested of the Department, but this would routinize the \r\nsupplying of this information to the Committee and, where \r\npossible, to the public. In most places what we ask for are \r\nsimply the aggregate number of the requests, which doesn't \r\nreveal much about the Department of Justice's investigations. \r\nBut it does give the public a sense of how often these tools \r\nare being used. And I think that's important.\r\n I think when the Attorney General, for example, decided to \r\nlet the public know that the library provision had never been \r\nused, he did so for good reason: to assuage concerns that \r\nwilly-nilly the government was looking for library records.\r\n Similarly, I think this amendment gives us greater \r\naccountability in provisions that will not sunset for 10 years, \r\nor not sunset at all, about how often they're being used should \r\npose no concern in terms of the nature of the investigation, \r\ndoesn't require any revelation of any of the details of an \r\ninvestigation, but should institutionalize more frequent \r\nreporting. As the Chairman observed in the early part of the \r\nlast Attorney General's reign, it was difficult to get \r\ninformation from the Department of Justice. I found in my \r\ndealings with the current Attorney General a much improved \r\nsituation. But given that Attorney Generals change and our \r\ncurrent one may be elevated to the Supreme Court, it would be \r\nwise, I think to institutionalize this kind of reporting \r\nrequirement, and I would urge my colleagues to join me in \r\nsupport this amendment.\r\n Chairman Sensenbrenner. Does the gentleman yield back?\r\n Mr. Schiff. Yes, Mr. Chairman.\r\n Chairman Sensenbrenner. The gentleman from Florida, Mr. \r\nFeeney.\r\n Mr. Feeney. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Feeney. Mr. Chairman, once again I raise the same \r\nobjections. What we are doing is basically a blanket \r\nrequirement in this case that the Federal counterintelligence \r\nagencies during intelligence and spy investigations be forced \r\nto release to Congress as a whole and at times to the public \r\ninformation about very sensitive investigations.\r\n Now, by the way, Congress has an oversight role here to \r\nplay. Every 6 months the Justice Department has got to release \r\na comprehensive report of every one of these national security \r\nletters. They're available to the oversight Committee with \r\ncharge of this, which is the Intelligence Committee.\r\n I can guarantee you that every one of our enemies, both \r\nforeign countries and foreign organizations that would like to \r\ndo us harm, will be very sophisticated in reviewing any \r\ninformation that we're forced to provide. Yes, Attorney General \r\nGonzales believed that it was appropriate and safe to release \r\ninformation about the use of library searches. But there may be \r\ntimes when it simply is not safe. This blanket requirement I \r\nthink would endanger the need to protect the level and the \r\namount and the details of national security investigations, and \r\nfor the same reasons as I opposed the former disclosure \r\nrequirements, I would suggest that we vote down this amendment \r\nas well.\r\n I yield back my time.\r\n Ms. Sanchez. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Sanchez.\r\n Ms. Sanchez. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentlewoman is recognized for 5 \r\nminutes.\r\n Ms. Sanchez. Thank you, Mr. Chairman. I would yield to my \r\ncolleague from California, Mr. Schiff.\r\n Mr. Schiff. I thank the gentlewoman for yielding.\r\n I was with the Justice Department for 6 years, and that \r\ndoesn't make me an authority on the Justice Department, but I \r\nguess we have a lot of non-authorities on this Committee and I \r\nfit right in.\r\n Yes, there is some conceivable interest in quarters around \r\nthe world about how our Justice Department operates. But, you \r\nknow, there's a lot of interest in it right here at home among \r\nordinary, law-abiding Americans, who would like to know how \r\noften our Government is using these extraordinary tools and be \r\nassured that they're not being overutilized.\r\n Much of the information we're requesting is, frankly, far \r\nless detail than the Chairman has requested upon occasion from \r\nthe Department. And I don't know what my colleague's experience \r\nhas been far on the other side of this particular aisle, but \r\nover the last 4 years, particularly in the early couple years, \r\nwhen I tried to get information from DOD or DOJ, it was often \r\nexcruciatingly difficult. And I think there is a strong \r\nnational interest in knowing how often these sections are \r\nutilized. And, again, we're talking about in most cases the \r\naggregate number of requests, not who they're being made of or \r\nthe nature of the investigation, but this is information that I \r\nthink we in Congress ought to have and that we generally don't \r\nhave. It's information, I think, that the American people ought \r\nto have to assure them that these authorities are not being \r\noverutilized. And I would certainly like to see us not put our \r\nhead in the sand and not say, you know, Justice Department, \r\ntake these authorities, do with them what you will, we don't \r\nreally want to know. We don't want to know.\r\n And that I think is effectively what we're saying here \r\nright now. I'd like to know, I think a lot of us would like to \r\nknow, and I think we can know and the American people can know \r\nwithout any sacrifice to the nature of these investigations. \r\nFrankly, if I were still in the Department, I would err on the \r\nside of letting the public know when it poses no obstacle to \r\ninvestigations. I think there's a valuable public purpose in \r\nletting the American people know we're safeguarding the very \r\npurpose for which we're fighting this war on terrorism, which \r\nis to preserve our way of life and our freedoms.\r\n With that, Mr. Chairman, I would yield back to my \r\ncolleague.\r\n Mr. Issa. Would the gentlelady yield?\r\n Ms. Sanchez. I will.\r\n Mr. Issa. I thank the gentlelady.\r\n I truly appreciate the gentleman's concern. It should be \r\nnoted, though, that the Permanent Select Committee on \r\nIntelligence of the House of Representatives gets every bit of \r\nthe information that you're now seeking. So with all due \r\nrespect, what we're really dealing with is whether we're going \r\nto downgrade it from the Select Intelligence Committee to the \r\nHouse as a whole, to the people and the enemy at large. And in \r\nfairness, the release from the Attorney General that they had \r\nnever used the library provision I hope is the last time that's \r\never released to the public. I do not want and I think we all \r\ndo not want to have a confident built up by the bad guys that \r\nwe, in fact, will allow them to do exactly what they did in \r\npreparation for 9\/11 and use libraries without any risk of \r\nbeing observed.\r\n Ms. Sanchez. Reclaiming my time, I'd like to yield back to \r\nthe gentleman from California.\r\n Mr. Schiff. I thank the gentlewoman for yielding. I guess I \r\ndisagree with my colleague who thinks it was poor judgment of \r\nthe prior Attorney General to let the American people know this \r\nsection had not been used and, in fact, would be very rarely \r\nused. The fact of the matter is, if you're a bad guy, you ought \r\nto know that there are grand jury subpoenas that can be used to \r\nget these records, and you can't be assured that they won't be \r\nsought.\r\n But in terms of whether the Congress should know, we didn't \r\nknow how often that provision had been used. I would have liked \r\nto have known that before the Attorney General made the \r\ndecision to notify the public. And, indeed, much of the time \r\nwhen we seek in classified form--this has been my experience. \r\nWhen I've sought classified hearings on the way certain \r\nauthorities have been used, I've gotten less information than \r\nwas later disclosed publicly by the Justice Department. And \r\nthat's excruciatingly frustrating.\r\n So this would give simply a little greater detail to some \r\nof the reporting requirements that are already in the PATRIOT \r\nbill. We're simply expanding some of the notice provisions \r\nabout how often the authorities are being used, and really not \r\ngoing beyond that, and I thank the gentlewoman for yield and \r\nyield back the balance of my time.\r\n Mr. Nadler. Mr. Chairman?\r\n Ms. Sanchez. And I yield back.\r\n Chairman Sensenbrenner. For what purpose does the gentleman \r\nfrom New York seek recognition?\r\n Mr. Nadler. Strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Nadler. Mr. Chairman, I'm not going to take 5 minutes. \r\nI just want to say I certainly agree and commend the \r\ngentleman--the amendment offered by the gentleman from \r\nCalifornia, and I commend him for offering it, and it's very \r\nsimple. The United States is a free country. Every action of \r\nGovernment is taken in the name of the people of the United \r\nStates. We ought to know various things that are being done. \r\nThe amendment the gentleman offers is simple: Report to \r\nCongress and to the American people.\r\n The idea that terrorists could profit from this information \r\nis quite far-fetched. To simply say the number of--the number \r\nof national security letters, the number of 215 orders, no \r\nterrorists are going to benefit from that. But this Congress \r\nmay benefit from it, the American people may benefit from it. \r\nWe ought to know about this increasingly secret Government of \r\nours. And I urge the adoption of the amendment.\r\n Mr. Schiff. Would the gentleman yield?\r\n Mr. Nadler. Sure.\r\n Mr. Schiff. Mr. Chairman, I'm going to resort to the most \r\npowerful argument I can now make in favor of this amendment, \r\nindeed the most powerful argument I've made in favor of any \r\namendment today, and that is, if adopted, this will be my last \r\namendment. [Laughter.]\r\n I can't be more persuasive than that, Mr. Chairman, and I \r\nwould be happy to yield back the balance of my time.\r\n Chairman Sensenbrenner. Does the gentleman from New York \r\nyield back?\r\n Mr. Nadler. I will yield to the gentleman from California.\r\n Mr. Issa. Thank you for yielding. I will give you most of \r\nit right here because, as I read further through the actual \r\ncriminal procedure, after it says that the Federal Bureau of \r\nInvestigation shall fully inform the Permanent Select Committee \r\non Intelligence of the House of Representatives, it then says \r\nand the Select Intelligence Committee of the Senate and the \r\nCommittee of the Judiciary of the House of Representatives and \r\nits counterpart in the Senate.\r\n So, believe it or not, we haven't gotten to the public, but \r\nit is, in fact, a requirement to come to this Committee, and we \r\ndo have that information, so hopefully that will give you an \r\nopportunity to look at it in a fully--full compliance that you \r\nmay not have been aware you had.\r\n Mr. Schiff. Will the gentleman yield further?\r\n Mr. Nadler. Yes, I'll be happy to yield.\r\n Mr. Schiff. There's no rebuttal to my most persuasive \r\npoint. If you accede, this is the last request.\r\n Mr. Nadler. Reclaiming my time, the unstated sentence, of \r\ncourse--and I do not attribute this to the gentleman; I just \r\nassume he means it--is that if this amendment doesn't pass, he \r\nmay have six more amendments.\r\n I yield back.\r\n Chairman Sensenbrenner. The question is on agreeing to the \r\namendment offered by the gentleman from California, Mr. Schiff. \r\nThose in favor will say aye? Opposed, no?\r\n The noes appear to have it.\r\n Mr. Schiff. Mr. Chairman, I request a recorded vote.\r\n Chairman Sensenbrenner. A recorded vote is ordered. Those \r\nin favor of the Schiff amendment will as your names are called \r\nanswer aye, those opposed no, and the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n [No response.]\r\n The Clerk. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n [No response.]\r\n The Clerk. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir votes? The gentleman from Utah, Mr. Cannon.\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. The gentleman from Indiana, Mr. \r\nHostettler.\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no.\r\n Chairman Sensenbrenner. The gentleman from Alabama, Mr. \r\nBachus.\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no.\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Coble.\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 15 ayes and 21 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n Are there further amendments?\r\n Ms. Jackson Lee. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from Texas, Ms. \r\nJackson Lee.\r\n Ms. Jackson Lee. Mr. Chairman, I have an amendment at the \r\ndesk, 132.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Ms. Jackson \r\nLee of Texas. At the end of Section 8, page 9, line 11, add the \r\nfollowing new subsection: (e) Exclusion of Medical Records. \r\nSection 501(a)(1) of the Foreign Intelligence----\r\n Ms. Jackson Lee. Mr. Chairman, I ask unanimous consent that \r\nthe amendment be considered as read.\r\n Chairman Sensenbrenner. The gentleman from North Carolina \r\nreserves a point of order, and subject to his reservation, \r\nwithout objection, the further reading is dispense with.\r\n [The amendment of Ms. Jackson Lee follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. The gentlewoman from Texas is \r\nrecognized for 5 minutes.\r\n Ms. Jackson Lee. Thank you very much, Mr. Chairman. I know \r\na few moments ago, maybe minutes or hours ago, one of my \r\ncolleagues wanted to ask the question whether or not any \r\nprovisions of the PATRIOT Act could be considered \r\nunconstitutional. We've had a number of debates on the floor of \r\nthe House that seemingly have drawn the support of Republicans \r\nand Democrats, and I would hope that this amendment would \r\nreflect the same kind of concern for the privacy of Americans.\r\n We certainly know that one provision allows the seizure of \r\nrecords or any tangible thing, and we have seen America's \r\nlibraries and librarians raise their voices in opposition. \r\nWe've also seen the work of a collective group of individuals \r\nwho respect the privacy of Americans alongside of our \r\nobligation of homeland security.\r\n Our friend and colleague, Congressman Sanders, has taken \r\nthis issue of library invasion of privacy and has received the \r\nrecognition that it is a problem that should be fixed. In fact, \r\nas it relates to libraries, there have been over 200 formal and \r\ninformal requests for materials, including 49 requests from \r\nFederal offices.\r\n This amendment deals specifically with an aspect of \r\nAmerica's privacy that most Americans hold very dear, and that \r\nis medical records. And the definition of this section makes it \r\nclear that these records or any tangible thing can be, if you \r\nwill, seized. It provides that the FBI intelligence \r\ninvestigators with a virtual blank check to seize medical \r\nrecords with effectively no public accountability.\r\n Section 215 has been known, as I've said, as dealing with \r\nlibrary records. Part of Section 215 gives the FBI the ability \r\nto obtain a court order for any tangible things, including \r\nmedical records, in an intelligence or terrorism investigation. \r\nPhysicians and other medical professionals who receive 215 \r\ncourt orders are barred from telling patients or anyone else \r\nanything about the court order. What an absurdity. Your own \r\npersonal private medical records, and the physician cannot tell \r\nyou that your records are being seized.\r\n Furthermore, Section 215 court orders are not limited to a \r\nparticular suspect. These requests for records need only be \r\nrelevant to an investigation, meaning that patients who are not \r\neven the targets of an investigation will also have their \r\ninformation vacuumed up by the FBI.\r\n Mr. Chairman, so many of us have had to deal with our elder \r\nrelatives in hospitals and nursing homes. You're not even \r\nallowed to call on behalf of your relative because of the new \r\nlaws that are governing hospitals governed or receiving Federal \r\nfunds all over America unless you are so designated. Even these \r\ninstitutions cannot give you the status of your relative's \r\nhealth condition, your child's health condition, unless you \r\nhave been so identified. But yet we're allowing innocent \r\npersons to have their records seized.\r\n Let me give you an example and let me cite for you--the \r\nAmerican Medical Association Board of Trustees in May 2005 \r\nshows us the impact. Even without hard data, it can be assumed \r\nthe PATRIOT Act will cause some patients to avoid seeking care \r\nor to be less than forthcoming in a physician's office. Quality \r\nof care may suffer. Unable to protest or even publicly \r\nacknowledge a disclosure, medical professionals stand to lose \r\nthe trust and confidence of their patients and undermine the \r\npatient-physician relationship.\r\n What I am speaking about is the broad breadth of seizure, \r\nnot a court-ordered seizure, not a probable cause seizure. I'm \r\ntalking about random calling up saying I think I want to get \r\nthis doctor's records.\r\n For example, two physicians in Houston--this is an example, \r\nhypothetical--in Houston are competing for the same pool of \r\npatients. One calls the FBI and falsely tells the Bureau that \r\nhis rival helped treat one of the 9\/11 hijackers that had a \r\nthroat infection. The FBI, which is still investigating 9\/11 \r\nattacks, obtains a secret court order under 215 and gets the \r\ninnocent doctor's patients' records. Has nothing to do with \r\nanything. But because of the reach of Section 215 isn't limited \r\nto a particular suspect, the order applies to all of the \r\ndoctor's records. They come in, they cull all the records, they \r\nget every single patient's record, launching separate \r\ninvestigations against every single patient who happens to be a \r\npatient of this doctor who may, for example, be from one of the \r\nso-called communities. Dozens of agents work the case. They go \r\nafter many foolish leads, and it comes up with nothing.\r\n Mr. Chairman, my colleagues, this is a very narrow \r\namendment that protects the privacy. It does not eliminate the \r\nopportunity under a more detailed, a more explanatory----\r\n Chairman Sensenbrenner. The gentlewoman's time has expired.\r\n Ms. Jackson Lee. It does not stop that. I ask my colleagues \r\nto support this amendment.\r\n Chairman Sensenbrenner. Does the gentleman from North \r\nCarolina insist upon his point of order?\r\n Mr. Coble. Mr. Chairman, I withdraw my point of order.\r\n Chairman Sensenbrenner. Okay. The gentleman from \r\nCalifornia, Mr. Lungren.\r\n Mr. Lungren. Mr. Chairman, for the reasons already cited \r\nwhen we had another amendment that went to medical records and \r\nother things to be excluded from the reach of Section 215, I \r\nrise in opposition to this amendment. Once again we've talked \r\nabout medical records, how they might be applicable in a \r\nparticular situation. We've talked about anthrax. We've talked \r\nabout other things. I don't know if we need to belabor the \r\npoint here. I think everybody knows what we're talking about.\r\n Once again, remember the reach of 215. It's a FISA court. \r\nYou have to be investigating something that deals with foreign \r\nintelligence. That's what we're talking about. If anybody \r\nthinks that the Government is interested in rummaging through \r\nyour medical records for no reason at all, I've never seen one \r\nexample of it. We're talking about something where people are \r\ntrying to find something that is relevant to the investigation \r\nin a terrorism case.\r\n And, once again, we're here because of terrorism. We're \r\nhere because of 9\/11. We're here because we need those \r\ninvestigative tools before the fact, not after the fact. Can we \r\nremember that as we look at these amendments? The difference \r\nbetween going in and doing a criminal investigation after the \r\nfact so that you can go and prosecute people versus trying to \r\ndeter terrorist attacks, that's what we're talking about. \r\nLondon was a tremendous example of what we're facing. And to \r\nsomehow believe that we have the foresight to understand all \r\ncircumstances where medical records would be irrelevant to \r\nthese investigations is assuming an amount of hubris that I \r\njust don't think we ought to.\r\n Once again, I will repeat, the 9\/11 Commission criticized \r\nthe Congress and the executive branch for a lack of foresight. \r\nThey said a lack of creativity, not thinking outside the box. \r\nAnd here what we're trying to do is get us back in the box \r\nsaying the way that things were before 9\/11 are the way that \r\nwill allow us to be able to fight terrorism. It didn't happen. \r\nIt ain't going to happen. And, frankly, there has been no proof \r\nwhatsoever of abuse. Why we would take this potential \r\ninvestigative technique to be used to fight terrorism is beyond \r\nme.\r\n And with that, I would ask for a no vote and yield back the \r\nbalance of my time.\r\n Ms. Waters. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentlewoman from California, \r\nMs. Waters.\r\n Ms. Waters. Yes, Mr. Chairman, my colleague from California \r\nis using the same arguments he used earlier. They don't sound \r\nany better now than they did then, and I'd yield the balance of \r\nmy time to the gentlelady from Texas.\r\n Ms. Jackson Lee. I thank the distinguished gentlelady, and \r\nI appreciate her amendment offered in the same spirit as this \r\namendment. It seems that clarity still is not apparent even at \r\nthis late hour. But I would just say to my distinguished \r\ncolleague, it just overwhelms me to make such a broad \r\nstatement. I love my country. I really do. I believe dearly in \r\nthe Bill of Rights, and I believe dearly in our responsibility \r\nnow in security and intelligence and homeland security.\r\n I might commend to him the 9\/11 Commission in its broadness \r\nthat clearly asked as we proceed to be precise in working \r\ntowards laws that we also understand our commitment to liberty \r\nand justice and to limit the broadness of our reach that would \r\nundermine--undermine--our very efforts of securing \r\nintelligence. They talked about not intimidating different \r\nsegments of the population, not stigmatizing religion.\r\n Obviously this is an effort to suggest that we narrow the \r\nefforts that we need to make in order to get the kind of right \r\nintelligence. And for my good friend to suggest that he's never \r\nseen an abuse by this Government gives me a great deal of \r\nconfusion. I'm completely baffled. I certainly read about it in \r\nthe history books when Senator McCarthy held these kinds of \r\nhearings where everybody in America was claimed to be a \r\ncommunist. So I----\r\n Mr. Lungren. Would the gentlelady yield on that point?\r\n Ms. Jackson Lee. I really don't understand--we do overreach \r\nin many instances, and it does not generate into anything. I \r\nwill join my colleague at any moment to ensure that our law \r\nenforcement has the right tools. I only offer this amendment to \r\nmy colleagues as my colleague has done--colleagues have done \r\nearlier in the day to simply say to narrow it. This provision \r\nin law is overbroad, this particular section. It has the \r\npotential to cause major violations of private rights \r\nguaranteed under the Fourth Amendment. It gives the Government \r\nfar more authority to gather information about innocent \r\nAmericans while reducing the ability of Americans to learn what \r\ntheir Government is doing.\r\n The Congress provided these sunsets in order to allow this \r\nbody to give a fresh look at the contentious portions thereof \r\nso that adequate fixes can be made. My hypothetical is a \r\npossibility. It is a possibility. False statements can be made \r\nabout patients. FBI can seize patient records and broadly seize \r\nall of a doctor's records, every single patient. And it can \r\nlead to dead ends and, of course, no results. And why not have \r\nmedical records excluded under this particular provision? It \r\ndoes not bar the agent or the investigation from securing \r\nrecords. If they prove themselves in an open court setting or \r\nsome other setting, it does not bar them. These are a secret \r\nprocess. It violates the privacy and overtakes, if you will, \r\nexisting law that has been written to protect the rights of \r\nAmericans.\r\n Mr. Lungren. Would the gentlelady yield?\r\n Ms. Jackson Lee. I would argue that--I don't have the time \r\nto yield. I'd ask my colleagues to support this amendment in \r\nits narrow, narrow exclusion of medical records and the \r\nallowance of these records to be excluded, but yet the \r\ninvestigation to go forward.\r\n Ms. Waters. Reclaiming my time, and I will yield to the \r\ngentleman from California.\r\n Mr. Lungren. I thank the gentlelady for yielding. The \r\nmischaracterization of my statement I'd like to respond to. I \r\nnever said that the United States Government has never abused \r\nits powers. I said with the investigations of this Committee \r\nduring the course of our many hearings, we have yet to find any \r\nevidence of abuse of the act that is before us that we are \r\nacting on right now, and that was the point that I solely made. \r\nAnd the gentlelady from Texas talked about the generalization, \r\nand I would just suggest that in our arguments we might bring \r\nthem a little more focused into what we have said and the \r\nprovisions that are before us. But I thank the gentlelady for \r\nyielding.\r\n Ms. Jackson Lee. May I just have 1 minute, if there is \r\nany----\r\n Ms. Waters. I yield to the gentlelady from Texas.\r\n Ms. Jackson Lee. Let me thank the gentleman for clarifying. \r\nMy example was as it was to just generally highlight episodes \r\nin our Government's life and that we should try at this time to \r\nbe able to narrow our overreach in the PATRIOT Act. But I will \r\nsay this to you: I've heard from many librarians who have \r\nindicated their intimidation by this process and the overreach \r\nof that intimidation.\r\n So I think that we have to look closely, we have to \r\nscrutinize this particular legislation, and the Ranking Member \r\nmade it very clear as he started out this morning. We had a \r\nbipartisan bill 2 years or so ago, but it turned out not to be \r\na bipartisan bill. I hope that now that we can do so. I look \r\nforward to working with the distinguished gentleman from \r\nCalifornia, but reaching for medical records without narrowing \r\nit I think is----\r\n Chairman Sensenbrenner. The time of the gentlewoman has \r\nexpired. The question is on the amendment offered by the \r\ngentlewoman from Texas, Ms. Jackson Lee. Those in favor will \r\nsay aye? Opposed, no?\r\n Ms. Jackson Lee. rollcall.\r\n Chairman Sensenbrenner. The noes appear to have it--\r\nrollcall will be ordered. Those in favor of the Jackson Lee \r\namendment will as your names are called answer aye, those \r\nopposed no, and the clerk will call the roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n [No response.]\r\n The Clerk. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Pass.\r\n The Clerk. Mr. Berman, pass. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n [No response.]\r\n The Clerk. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Are there further members in the \r\nchamber who wish to cast or change their vote? The gentleman \r\nfrom Florida, Mr. Feeney.\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no.\r\n Chairman Sensenbrenner. The gentleman from Utah, Mr. \r\nCannon.\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nGallegly.\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? If not, the clerk will report.\r\n The gentlewoman from California, Ms. Waters.\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye.\r\n Chairman Sensenbrenner. The clerk will report.\r\n The Clerk. Mr. Chairman, there are 12 ayes and 24 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to.\r\n Are there further amendments? The gentleman from Maryland, \r\nMr. Van Hollen.\r\n Mr. Van Hollen. Thank you, Mr. Chairman. I know the hour is \r\nlater, and I'll try and be brief.\r\n Chairman Sensenbrenner. Does the gentleman have an \r\namendment at the desk?\r\n Mr. Van Hollen. I do, Mr. Chairman.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Van \r\nHollen of Maryland. Add at the end of the following: Sec. ___. \r\nTerrorist Lists. Section 1001 of the US PATRIOT Act, P.L. 107-\r\n56, is amended----\r\n Mr. Van Hollen. Mr. Chairman, I ask unanimous consent that \r\nfurther reading of the amendment be dispensed with.\r\n Mr. Gallegly. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California.\r\n Mr. Gallegly. Raise a point of order.\r\n Chairman Sensenbrenner. The gentleman reserves a point of \r\norder. Subject to the reservation, the further reading of the \r\namendment is dispensed with and the gentleman from Maryland, \r\nMr. Van Hollen, is recognized for 5 minutes.\r\n [The amendment of Mr. Van Hollen follows:]\r\n \r\n \r\n Chairman Sensenbrenner. Mr. Van Hollen.\r\n Mr. Van Hollen. Thank you, Mr. Chairman. This is an \r\namendment to the existing statute, PATRIOT Act statute, Section \r\n1001, regarding certain requirements placed on the Inspector \r\nGeneral of the Department of Justice. And what this does simply \r\nis deal with the terrorist watchlist.\r\n Earlier I offered an amendment that would impose \r\nresponsibilities on those individuals who knowingly sold \r\nfirearms to individuals on the watchlist, and Mr. Lungren and \r\nothers raised the issue about the reliability of those \r\nwatchlists and whether or not everyone who was listed on those \r\nlists was properly there. And when we had the Attorney General \r\ntestifying on this bill before this Committee, I asked him \r\nabout what mechanism was in place for a citizen who had been \r\nmistakenly placed on the watchlist to get him or herself off \r\nthat watchlist, and the Attorney General said he's like to work \r\nwith us to make sure we did that.\r\n Well, they've been working on that, but the work has been \r\ngoing rather slowly. Just last month, the Inspector General at \r\nthe Department of Justice issued a report regarding the \r\nTerrorist Screening Center. It's a report entitled ``Review of \r\nthe Terrorist Screening Center.'' One of the recommendations \r\nthey make in that report is to strengthen the procedures for \r\nhandling misidentifications and articulate in a formal written \r\ndocument the protocol supporting such procedures. And they make \r\nother recommendations.\r\n What this amendment does very simply is say within 90 days \r\nof the enactment of this act, let's ask the Inspector General \r\nto report to this Committee on what progress has been made by \r\nthe Department in implementing the recommendations by the \r\nInspector General with respect to having a protocol and having \r\nsome set procedure for people who are misplaced, whose names \r\nshould not be placed on that list, how they get off the list. I \r\nthink we've all heard stories about people who find themselves \r\non the list, and there's no clear mechanism for how they get \r\noff. And this simply asks for a report on what follow-through \r\nhas been made on recommendations by the Inspector General at \r\nthe Justice Department.\r\n I would urge members on both sides of the aisle to adopt \r\nthe amendment.\r\n Chairman Sensenbrenner. Does the gentleman from California \r\ninsist upon his point of order?\r\n Mr. Gallegly. Yes.\r\n Chairman Sensenbrenner. The gentleman will state his point \r\nof order.\r\n Mr. Gallegly. Mr. Chairman, I make a point of order that \r\nthe amendment is not germane under House Rules. H.R. 3199 \r\nreauthorizes certain provisions of the PATRIOT Act and the \r\nIntelligence Reform and Terrorism Prevention Act. House Rule \r\nXVI-7 precludes amendments on a subject different from that \r\nunder consideration. This amendment is outside the subject \r\nmatter of the legislation we're considering at today's markup.\r\n In addition, the fundamental purpose of this amendment is \r\ninconsistent with the primary purpose of the bill under \r\nconsideration and, thus, non-germane under rule--House Rule \r\nXVI-7.\r\n Chairman Sensenbrenner. Does the gentleman from Maryland \r\nwish to speak on the point of order?\r\n Mr. Van Hollen. Yes, Mr. Chairman, I do.\r\n Chairman Sensenbrenner. The gentleman from Maryland.\r\n Mr. Van Hollen. I would just remind my colleague that \r\nearlier today there was an amendment offered by Ms. Lofgren of \r\nCalifornia to exactly this same section, which was adopted, I \r\nbelieve unanimously, on a recorded vote by this Committee. And \r\nmy understanding is--and I would press this issue, which is \r\nthat the Committee having taken that action with respect to \r\namending this section in the regard that we did, and I think \r\nyou'll find it was on an issue of similar nature, not the exact \r\nsame point, that that issue has already been addressed by this \r\nCommittee.\r\n So I would ask that we consider this amendment, having, you \r\nknow, looked at what the Committee already done--did today and \r\naddress it on its merits and make a decision.\r\n Chairman Sensenbrenner. The Chair is prepared to rule. \r\nBecause this is an amendment to the material witness part of \r\nthe PATRIOT Act, the Chair feels that it is germane and \r\noverrules the point of order, and the question is on adoption \r\nof the Van Hollen amendment.\r\n Mr. King. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.\r\n Mr. King. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. Thank you, Mr. Chairman. The Van Hollen amendment \r\nis brought before us, and we need to recognize that we have \r\nprocedures now for removal of the names from the list. And we \r\ncould name some of the fairly high-profile people who have been \r\nin the news here recently who have had their name removed from \r\nthe list. But if we go forward with this amendment, then we'll \r\nend up with a public report, and the public report will be a \r\nscorecard to the world as to how we're doing with this \r\nparticular list, and it might very well add to a lot of \r\nspeculation and cause us greater problems than any of us on \r\neither side of the aisle would like to see on this issue.\r\n So I would point out to the gentleman from Maryland that \r\nthere is a GAO study. It's ongoing now, and it was requested \r\napproximately last March. It should be concluded sometime in \r\nNovember or December, at which time it would come back to us, \r\nclassified. We'd have access to that report to review it in a \r\nclassified setting. I'd be happy to go and review that--in \r\nfact, I think it would be an obligation on my part--and invite \r\nthe gentleman from Maryland to do so. If you'd like another \r\nkind of a report to come, a member letter could be submitted to \r\nJustice, and one could achieve this information without being \r\nso public with it.\r\n So that would be the list of my objections to this \r\namendment, and I'd urge a no vote and yield back the balance of \r\nmy time.\r\n Chairman Sensenbrenner. The question is on the Van Hollen \r\namendment. Those in favor will say aye? Opposed, no?\r\n The noes appear to have it. The noes have it. The amendment \r\nis not agreed to.\r\n Are there further----\r\n Mr. Van Hollen. Mr. Chairman, I would ask for a rollcall on \r\nthat.\r\n Chairman Sensenbrenner. A rollcall will be ordered. Those \r\nin favor of the Van Hollen amendment will as your names are \r\ncalled answer aye, those opposed no, and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n [No response.]\r\n The Clerk. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n [No response.]\r\n The Clerk. Mr. Jenkins?\r\n [No response.]\r\n The Clerk. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote? The gentleman from Tennessee, Mr. Jenkins.\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no.\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nLungren.\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no.\r\n Chairman Sensenbrenner. The gentleman from Ohio, Mr. \r\nChabot.\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Chairman Sensenbrenner. The gentleman from North Carolina, \r\nMr. Coble.\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no.\r\n Chairman Sensenbrenner. Further members who wish to cash or \r\nchange their votes? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 15 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments? The gentleman from New York, Mr. \r\nNadler.\r\n Mr. Nadler. Thank you, Mr. Chairman. This is my next to \r\nlast amendment that's designated A at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Amendment to H.r. 3199 offered by Mr. Nadler of \r\nNew York.\r\n Insert in the appropriate place in the bill the following:\r\n Section ___. Right to Counsel\r\n (1) In General--Section 2709 of Title 18, United States \r\nCode, is amended by inserting----\r\n (a) Authority to Disclose to Qualified Persons\r\n (1) Any person to whom an order is directed----\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read and the gentleman from New York is \r\nrecognized for 5 minutes.\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Mr. Nadler. Thank you. Mr. Chairman, I'll be very brief. \r\nThis amendment amends Section 505 dealing with national \r\nsecurity letters, and essentially puts into that section the \r\nsame language the Chairman put into the Section 215 in the main \r\nbill.\r\n It does two things. It says that when you have Section 505, \r\na national security letter with respect to the non-disclosure \r\nof the gag order, you can disclose it to your attorney and you \r\ncan disclose it to someone else in your company to whom \r\ndisclosure is necessary in order to comply with the order.\r\n The language is essentially taken from the language that is \r\nin the bill in Section 215, and the thought is the same reason \r\nthe bill puts this into Section 215, it ought to put it into \r\nSection 505. You should be able to disclose the contents of the \r\nnational security letter to whoever it's necessary to disclose \r\nit to in order to get the letter complied with if it's someone \r\nelse in your company; and two, to your attorney so that they \r\ncan give you legal advice. And anyone you disclose it to is \r\nbound by the same gag order.\r\n So it's the same reasoning and the same language as in \r\nSection 215, the same purpose, and I would hope it would be \r\naccepted, and I yield back.\r\n Mr. Flake. Would the gentleman yield?\r\n Mr. Nadler. Yes, I will.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr. \r\nFlake.\r\n Mr. Nadler. Did you want me to yield before I yield back?\r\n Mr. Flake. Yes.\r\n Mr. Nadler. I'll yield to the gentleman.\r\n Mr. Flake. This won't take long. I don't have the language \r\ndrafted. We have some of the same concerns. We worked on some \r\nof the same concerns, so it's not surprising. But I am working \r\non a floor amendment that would address the same concerns that \r\nyou're looking at here. I can't give you specific on it. I \r\nwon't offer it here, but I'd be glad to work with you on one \r\nfor the floor.\r\n Mr. Nadler. Reclaiming my time, assuming this amendment--\r\nwell, whether or not this amendment doesn't pass, I'll be happy \r\nto work with you as we go to the floor.\r\n But I would hope this amendment would be accepted. The \r\nlanguage is taken verbatim, just about verbatim from Section \r\n215 in the bill. And obviously, it is necessary, and 215 is \r\nnecessary here.\r\n Mr. Flake. If the gentleman will yield, I'm still working \r\non language. I'm not prepared to support this, but I would be \r\nglad to work with the gentleman on the amendment I'm working on \r\nfor the floor.\r\n Chairman Sensenbrenner. Gentleman yield back?\r\n Mr. Nadler. I yield back.\r\n Chairman Sensenbrenner. Question is on the Nadler \r\namendment. Those in favor will say aye.\r\n Opposed no.\r\n The noes appear to have it.\r\n Mr. Nadler. I ask for the yeas and nays.\r\n Chairman Sensenbrenner. rollcall will be ordered. Those in \r\nfavor of the Nadler amendment will, as your names are called, \r\nanswer aye; those opposed, no; and the clerk will call the \r\nroll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n [No response.]\r\n The Clerk. Mr. Goodlatte?\r\n [No response.]\r\n The Clerk. Mr. Chabot?\r\n [No response.]\r\n The Clerk. Mr. Lungren?\r\n [No response.]\r\n The Clerk. Mr. Jenkins?\r\n [No response.]\r\n The Clerk. Mr. Cannon?\r\n [No response.]\r\n The Clerk. Mr. Bachus?\r\n [No response.]\r\n The Clerk. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n [No response.]\r\n The Clerk. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n [No response.]\r\n The Clerk. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye. Mr. Schiff?\r\n Mr. Schiff. Aye.\r\n The Clerk. Mr. Schiff, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. Aye.\r\n The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir votes? Gentleman from California, Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no.\r\n Chairman Sensenbrenner. Gentleman from California, Mr. \r\nGallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no.\r\n Chairman Sensenbrenner. Gentleman from Virginia, Mr. \r\nGoodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no.\r\n Chairman Sensenbrenner. Gentleman from Texas, Mr. Smith?\r\n Mr. Smith. Mr. Chairman, I vote no.\r\n The Clerk. Mr. Smith, no.\r\n Chairman Sensenbrenner. The gentleman from Tennessee, Mr. \r\nJenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no.\r\n Chairman Sensenbrenner. Gentleman from Wisconsin, mr. \r\nGreen?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no.\r\n Chairman Sensenbrenner. Gentlewoman from California, Ms. \r\nWaters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye.\r\n Chairman Sensenbrenner. Gentleman from California, Mr. \r\nBerman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye.\r\n Chairman Sensenbrenner. Further members who wish--gentleman \r\nfrom Utah, Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no.\r\n Chairman Sensenbrenner. Gentleman from Alabama, Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes?\r\n Ms. Jackson Lee. Mr. Chairman, how am I recorded?\r\n Chairman Sensenbrenner. How is the gentlewoman from Texas \r\nrecorded?\r\n The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as an \r\naye.\r\n Ms. Jackson Lee. Thank you.\r\n Chairman Sensenbrenner. The clerk will report.\r\n Gentleman from Ohio, Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no.\r\n Chairman Sensenbrenner. The clerk will report.\r\n The Clerk. Mr. Chairman, there are 16 ayes and 23 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments? The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Mr. Chairman, I have an amendment at the desk, \r\nHumanitarian Assistance.\r\n The Clerk. Amendment to H.R. 3199 offered by Mr. Scott of \r\nVirginia.\r\n Add at the end the following:\r\n Section ___. Humanitarian assistance under the material \r\nsupport statute.\r\n Section 18 USC Subsection 2339A is amended by striking ``or \r\nreligious materials'' in section (b) and inserting----\r\n Chairman Sensenbrenner. By unanimous consent, the amendment \r\nwill be considered as read, and the gentleman from Virginia \r\nwill be recognized for 5 minutes.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, this is \r\nunder the material support prohibition, that you can't give \r\nmaterial support to terrorist organizations. This would allow \r\nnormal humanitarian assistance during times of a natural \r\ndisaster or other humanitarian situations to people in \r\ncountries or territories that may be controlled by individuals \r\nor groups on watch lists or other designations which would \r\nconstitute or at least raise the possibility of a violation of \r\nmaterial support prohibition.\r\n There's no logical reason that you could provide medicines \r\nbut not medical services or drinking water or food to people \r\nwhen those services or materials could not be diverted to \r\nmilitary ends.\r\n I would hope it would be the pleasure of the Committee to \r\nadopt the amendment.\r\n Mr. King. Mr. Chairman?\r\n Chairman Sensenbrenner. Gentleman from Iowa, Mr. King.\r\n Mr. King. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. I thank the Chairman.\r\n The gentleman from Virginia's amendment goes--does a number \r\nof things here that I don't know that this Committee can \r\nsupport, and one of them is it simply gives legitimacy to the \r\nterrorist organizations, and by opening up the door to send \r\nmore money and more relief and funnel it through the terrorist \r\norganizations--and we're talking about terrorist organizations \r\nlike Abu Nidal, Ansar al-Islam, Al-Aqsa Martyrs Brigade, the \r\nArmed Islamic Group, the--it gets worse--Hamas, Hezbollah, \r\nIslamic Jihad, al-Jihad, al Qaeda, and the al Qaeda \r\norganization in Iraq, all part of the 41 terrorist \r\norganizations. And to give them this form of legitimacy and \r\nopen this door up, where it's fairly closed right now, I mean \r\nto add to this, to add to the religious materials and medical \r\nsupplies, services, drinking water, food, children's clothing.\r\n But the problem with this is the catch-all, the services \r\nand other humanitarian materials and services that could not be \r\ndiverted to military ends. That's everything but guns and \r\nbullets by that definition.\r\n And if you recall, our President, shortly after September \r\n11th, made the statement that if you harbor terrorists you are \r\na terrorist, if you fund terrorists you are a terrorist. And \r\nthese are terrorist organizations. This is funding that goes to \r\nterrorist organizations. We would be funding terrorist \r\norganizations with this amendment. It's not just the Republican \r\nside of the aisle that makes those kind of statements, but the \r\nPresident's is--I would just simply quote. ``International \r\nterrorist networks make frequent use of charitable or \r\nhumanitarian organizations to obtain clandestine financial and \r\nother support for their activities.'' This could be a loophole \r\nthrough which support could be provided to individuals or \r\ngroups involved with terrorism.\r\n Concurring with the President's view would be Senator \r\nDianne Feinstein, who said, in part, ``I simply do not accept \r\nthat so-called humanitarian works by terrorist groups can be \r\nkept separate from their other operations. I think the money \r\nwill ultimately go to bombs and bullets, rather than babies, or \r\nbecause money is fungible, it will free up other funds to be \r\nused on terrorist activities.''\r\n For that reason and many others, I urge the defeat of this \r\namendment, and I would yield back the balance of my time.\r\n Chairman Sensenbrenner. The question is on the amendment--\r\n--\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. Gentleman from New York.\r\n Mr. Nadler. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman's recognized for 5 \r\nminutes.\r\n Mr. Nadler. Mr. Chairman, I believe this is a very \r\ninteresting amendment, and I yield to the gentleman from \r\nVirginia.\r\n Mr. Scott. Thank you, Mr. Chairman. I would say that what \r\nwe're doing is amending an existing statute which allows \r\nreligious materials and medicines to be given to all of those \r\ngroups that have been indicated. That's present law. What we're \r\ndoing is just extending what you can give in disaster \r\nsituations or otherwise, medical services, drinking water, \r\nchildren's clothing and other humanitarian services.\r\n I mean if you can give religious materials and medicines, \r\nyou ought to be able to give water to the same groups that \r\nyou've listed. That's the present law. And in a disaster, you \r\nknow, some people may not want to give water or other \r\nhumanitarian assistance because they may be committing a crime, \r\nand I can't believe that that's our intent. I'd hope we'd adopt \r\nthe amendment so we can provide some humanitarian aid in \r\ndisasters to people in need.\r\n Mr. Lungren. Will the gentleman yield?\r\n Mr. Nadler. Reclaiming my time, I'll yield to the gentleman \r\nfrom California.\r\n Mr. Lungren. I would just ask the gentleman from Virginia \r\nwhether or not he accepts the argument of fungibility of funds? \r\nThat is, being able to use----\r\n Mr. Nadler. I yield to the gentleman from Virginia.\r\n Mr. Scott. If the gentleman would yield, I would say that \r\nyou've got medicines, religious materials and other things \r\nalready under the law. And yeah, I guess, instead of--if people \r\nare dying of thirst and you provided some water, maybe that \r\nwould be fungible, but I think under the circumstances, just \r\nhumanitarian circumstances, you ought to be able to provide \r\nhumanitarian aid without being charged with a crime.\r\n Mr. Nadler. Reclaiming my time, I'd like to ask the \r\ngentleman, to whom are you supplying this under this amendment? \r\nI'll yield.\r\n Mr. Scott. I'd say to the gentleman, the same people you \r\nare under Section 18 USC 2339A, whoever you're--with the \r\nexceptions there of religious materials, medicines and things \r\nlike that. We're just adding to the things that you can give \r\nunder that same section. We're just having a few more \r\nexceptions like water and children's clothing and humanitarian \r\naid.\r\n Mr. Nadler. I thank the gentleman. I yield back.\r\n Chairman Sensenbrenner. Gentleman from Wisconsin.\r\n Mr. Green. Move to strike the last word.\r\n Chairman Sensenbrenner. Gentleman's recognized for 5 \r\nminutes.\r\n Mr. Green. Thank you, Mr. Chairman. I rise in opposition to \r\nthis amendment as well, and for many of the same reasons that \r\nmy friend and colleague from Iowa has laid out.\r\n First off, it's far too broadly drafted. It is a catch-all. \r\nFor example, the use of educational supplies, well, we were \r\nparticularly trying to get at with the material support \r\nstatutes the provision of intellectual support and educational \r\nmaterial that could in fact be of assistance to terrorists. \r\nAlso, when you make reference to other humanitarian materials \r\nand services, that is a large catch-all. All of these materials \r\nare fungible. But there's another important point here. We \r\ndon't want to add legitimacy or credibility to these \r\norganizations, and I think we do that if we start broadening \r\nwhat it is that can be supplied to them under the statute.\r\n I think it's a tremendous mistake. I think we should keep \r\nit narrow as it is. I'm not aware of there being any problems \r\nhave been identified. If the gentleman can name circumstances \r\nwhere these organizations or individuals were in need and we \r\nwere not able to help them under the previous statute, I'd \r\ncertainly be willing to listen. Beyond that, I just think this \r\namendment is opening up a dangerous door. It's far too broad, \r\nand I think it would be a step in the wrong direction.\r\n With that I yield back.\r\n Chairman Sensenbrenner. The question is on the Scott \r\namendment. Those in favor will say aye. Opposed no.\r\n The noes appear to have it. The noes----\r\n Mr. Scott. Recorded vote, please?\r\n Chairman Sensenbrenner. Recorded vote will be ordered. All \r\nthose in favor of the Scott amendment will, as your names are \r\ncalled, answer aye, those opposed no, and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n [No response.]\r\n The Clerk. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. Aye.\r\n The Clerk. Mr. Berman, aye. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. No.\r\n The Clerk. Mr. Nadler, no. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n [No response.]\r\n The Clerk. Ms. Jackson Lee?\r\n [No response.]\r\n The Clerk. Ms. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. Aye.\r\n The Clerk. Mr. Delahunt, aye. Mr. Wexler?\r\n Mr. Wexler. No.\r\n The Clerk. Mr. Wexler, no. Mr. Weiner?\r\n Mr. Weiner. No.\r\n The Clerk. Mr. Weiner, no. Mr. Schiff?\r\n [No response.]\r\n Ms. Jackson Lee. How am I recorded? Are they in the middle \r\nof the vote?\r\n The Clerk. Mr. Chairman, Ms. Jackson Lee is not recorded.\r\n Ms. Jackson Lee. Aye, please.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Sanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?\r\n Mr. Van Hollen. No.\r\n The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. No.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members in the chamber who wish to \r\ncast or change their vote? Gentleman from Arizona, Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no.\r\n Chairman Sensenbrenner. Gentleman from California, Mr. \r\nBerman?\r\n Mr. Berman. No.\r\n The Clerk. Mr. Berman, no.\r\n Chairman Sensenbrenner. Gentleman from California, Mr. \r\nSchiff?\r\n Mr. Schiff. No.\r\n The Clerk. Mr. Schiff, no.\r\n Chairman Sensenbrenner. Gentlewoman from California, Ms. \r\nSanchez?\r\n Ms. Sanchez. No.\r\n The Clerk. Ms. Sanchez, no.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their vote?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 7 ayes and 31 noes.\r\n Chairman Sensenbrenner. And the amendment is not agreed to. \r\nAre there further amendments? The gentlewoman from Texas, Ms. \r\nJackson Lee.\r\n Ms. Jackson Lee. Thank you very much, Mr. Chairman.\r\n Let me say that I have an amendment at the desk.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendment.\r\n The Clerk. Mr. Chairman, I have two amendments from Ms. \r\nJackson Lee.\r\n Ms. Jackson Lee. Enhanced review.\r\n The Clerk. Amendment to H.R. 3199 offered by Ms. Jackson \r\nLee.\r\n At the end of the bill, add the following section:\r\n Section ___. Enhanced Review of Profiling and Data \r\nCollection.\r\n Section 1001 of the USA PATRIOT Act is amended by:\r\n (1) adding after ``(1)'' the following: ``(a)''; and\r\n (2) adding after ``Department of Justice'' the following:\r\n Ms. Jackson Lee. I ask the amendment to be considered as \r\nread.\r\n Chairman Sensenbrenner. Without objection, so ordered.\r\n [The amendment of Ms. Jackson Lee follows:]\r\n \r\n \r\n Ms. Jackson Lee. Colleagues, I'll be very brief. I just \r\nwant----\r\n Chairman Sensenbrenner. The gentlewoman's recognized for 5 \r\nminutes.\r\n Ms. Jackson Lee. --refer you to an informational piece that \r\nthis amendment would allow us to operate under the guidelines, \r\nunder the Attorney General's guidelines on general crimes, \r\nracketeering enterprise and domestic security terrorism, dated \r\nMarch 21, 1989.\r\n I would think under the 9\/11 Commission Report, one of the \r\nthings that it included in its report was to sensitize \r\nAmericans and sensitize our need to understand diverse \r\ncultures. We cannot understand diverse cultures as they believe \r\nthat our attempt to be secure racially profiles their \r\ncommunities.\r\n In 1989 Attorney General Dick Thornburgh approved new \r\nguidelines for how the FBI would pursue domestic security and \r\nterrorism. Those guidelines recognized investigations into \r\ndomestic activities as something necessary----\r\n Chairman Sensenbrenner. The gentlewoman will suspend. The \r\nCommittee is not in order. If we can quiet things down and \r\nlisten to the eloquence of the gentlewoman from Texas, maybe we \r\ncan get done quicker.\r\n The gentlewoman will proceed.\r\n Ms. Jackson Lee. I thank the Chairman.\r\n But it said that limits--but that limits and protections \r\nwere needed to ensure the constitutional rights of average \r\nAmericans. However, in 2002, Attorney General Ashcroft extended \r\nthese guidelines in a way that clearly intruded on Americans' \r\nFirst Amendment Right to speak and peacefully assemble and \r\nother constitutional protections.\r\n Most importantly, the 2002 guidelines now allow the FBI to \r\nmonitor even peaceful rallies, protests and meetings of \r\nreligious, political and social without any suspicion of \r\nwrongdoing.\r\n My amendment is simple. It would like to ensure that we \r\nfollow the guidelines, that even as we seek to provide homeland \r\nsecurity or security and intelligence by securing information, \r\nthat we not recklessly invade the concept, or overlook the \r\nconcept of racial profiling. It asks for a review of the use of \r\nany investigative authority on the Attorney General's \r\nguidelines, and in so doing, it helps us to protect innocent \r\nindividuals who happen to be of a particular faith or racial \r\nbackground.\r\n Since 2002 these new powers have been used by the FBI to \r\nspy on mosques, and to try to infiltrate Muslim and Arab groups \r\nin ways that clearly implicate the First Amendment.\r\n I believe that as 9\/11 Commission Report indicated, we can \r\nbe safe but also protect civil liberties.\r\n Mr. Chairman, I was also going to offer an amendment that \r\nwould investigate the results of FISA authorizations as to the \r\nnumber of convictions or deportations that occurred. I will not \r\noffer that amendment. I will hope to work with Committee staff \r\nto try and refine that. It's an investigatory tool that \r\nclassified information can come back to the Congress to see how \r\neffective FISA has been in terms of criminal proceedings or \r\nremoval proceedings. But I go back to this amendment, and \r\nsimply ask my colleagues to support it.\r\n And I commend to them an article in the Washington Times, \r\nknowing that our British friends have gone through a very \r\nserious tragedy over the last couple of days, but out of that \r\ntragedy the article says, Britons favor tracking Muslim \r\nactivities. We know that danger and terrorist activities \r\ngenerate a focus on particular religious groups and particular \r\nethnic groups. This amendment gives us the investigatory tool \r\nto ensure that if there is racial profiling, we are finding a \r\nway to thwart it. And so I hope my colleagues would support \r\nthis amendment.\r\n Mr. King. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.\r\n Mr. King. Move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. King. Thank you, Mr. Chairman. Consistent with the \r\nsentiment of the gentlelady from Texas's amendment, and also \r\nconsistent with the due diligence oversight that's being led by \r\nthis Committee, by the Chairman and the Ranking Member, the \r\nInspector General is doing a larger investigation which \r\nincludes this amendment. It's a larger investigation, but \r\ninclusive of the gentlelady from Texas's amendment, which is \r\nbefore us.\r\n They've testified here in this Committee, and that report \r\nis due here in about a month. So it would be my opinion that \r\nwe're better off to wait a month and get the report that's on \r\nthe way, than pass an amendment that would simply confuse the \r\nissue, and so I'd urge a no vote on the gentlelady's \r\namendment----\r\n Ms. Jackson Lee. Will the gentleman yield?\r\n Mr. King. I would yield. I would yield.\r\n Ms. Jackson Lee. I thank the distinguished gentleman.\r\n Chairman, the room is not in order.\r\n Chairman Sensenbrenner. The Committee will be in order. The \r\ngentlewoman is recognized.\r\n Ms. Jackson Lee. I thank the tone of the distinguished \r\ngentleman's remarks, and I was made aware that there was a \r\nInspector General's Report on its way to Congress. My interest \r\nis that by including it in this legislation, this language, it \r\nallows us to have a continuing report and a continuing \r\nmonitoring in a classified manner.\r\n Respect the gentleman's acknowledgement that a report may \r\nbe forthcoming, but I would suggest to him that as we pass the \r\nPATRIOT Act, it is going to be part of the fabric of our \r\nsociety. There will be ongoing opportunities for individuals to \r\nbe targeted, and\/or for racial profiling or religious profiling \r\nto go on.\r\n We can be secure without such profiling. I think it's \r\nappropriate to remind the Attorney General and others engaged \r\nin this process to follow those guidelines ongoing. So I'd ask \r\nmy colleagues----\r\n Mr. King. Reclaiming my time.\r\n Ms. Jackson Lee. I yield back.\r\n Mr. King. I thank the gentlelady from Texas.\r\n You know, we have a report that's coming before us that we \r\nhave without the requirement of legislation to get that report, \r\nand I suggest we receive the report in about a month, review \r\nthe report, make a decision at that time as to whether we need \r\nsome permanent fixture in statute, and I'd urge a no vote on \r\nthe amendment.\r\n Yield back the balance of my time.\r\n Chairman Sensenbrenner. The question is on the amendment \r\noffered by the gentlewomen from Texas, Ms. Jackson Lee. Those \r\nin favor will say aye. Opposed, no.\r\n Noes appear to have it.\r\n Ms. Jackson Lee. rollcall.\r\n Chairman Sensenbrenner. rollcall will be ordered. Those in \r\nfavor of the Jackson Lee amendment will, as your names are \r\ncalled, answer aye; those opposed no; and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. No.\r\n The Clerk. Mr. Hyde, no. Mr. Coble?\r\n Mr. Coble. No.\r\n The Clerk. Mr. Coble, no. Mr. Smith?\r\n Mr. Smith. No.\r\n The Clerk. Mr. Smith, no. Mr. Gallegly?\r\n Mr. Gallegly. No.\r\n The Clerk. Mr. Gallegly, no. Mr. Goodlatte?\r\n Mr. Goodlatte. No.\r\n The Clerk. Mr. Goodlatte, no. Mr. Chabot?\r\n Mr. Chabot. No.\r\n The Clerk. Mr. Chabot, no. Mr. Lungren?\r\n Mr. Lungren. No.\r\n The Clerk. Mr. Lungren, no. Mr. Jenkins?\r\n Mr. Jenkins. No.\r\n The Clerk. Mr. Jenkins, no. Mr. Cannon?\r\n Mr. Cannon. No.\r\n The Clerk. Mr. Cannon, no. Mr. Bachus?\r\n Mr. Bachus. No.\r\n The Clerk. Mr. Bachus, no. Mr. Inglis?\r\n Mr. Inglis. No.\r\n The Clerk. Mr. Inglis, no. Mr. Hostettler?\r\n Mr. Hostettler. No.\r\n The Clerk. Mr. Hostettler, no. Mr. Green?\r\n Mr. Green. No.\r\n The Clerk. Mr. Green, no. Mr. Keller?\r\n Mr. Keller. No.\r\n The Clerk. Mr. Keller, no. Mr. Issa?\r\n Mr. Issa. No.\r\n The Clerk. Mr. Issa, no. Mr. Flake?\r\n Mr. Flake. No.\r\n The Clerk. Mr. Flake, no. Mr. Pence?\r\n Mr. Pence. No.\r\n The Clerk. Mr. Pence, no. Mr. Forbes?\r\n Mr. Forbes. No.\r\n The Clerk. Mr. Forbes, no. Mr. King?\r\n Mr. King. No.\r\n The Clerk. Mr. King, no. Mr. Feeney?\r\n Mr. Feeney. No.\r\n The Clerk. Mr. Feeney, no. Mr. Franks?\r\n Mr. Franks. No.\r\n The Clerk. Mr. Franks, no. Mr. Gohmert?\r\n Mr. Gohmert. No.\r\n The Clerk. Mr. Gohmert, no. Mr. Conyers?\r\n Mr. Conyers. Aye.\r\n The Clerk. Mr. Conyers, aye. Mr. Berman?\r\n Mr. Berman. No.\r\n The Clerk. Mr. Berman, no. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. Aye.\r\n The Clerk. Mr. Nadler, aye. Mr. Scott?\r\n Mr. Scott. Aye.\r\n The Clerk. Mr. Scott, aye. Mr. Watt?\r\n Mr. Watt. Aye.\r\n The Clerk. Mr. Watt, aye. Ms. Lofgren?\r\n Ms. Lofgren. Aye.\r\n The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?\r\n Ms. Jackson Lee. Aye.\r\n The Clerk. Ms. Jackson Lee, aye. Ms. Waters?\r\n [No response.]\r\n The Clerk. Mr. Meehan?\r\n Mr. Meehan. Aye.\r\n The Clerk. Mr. Meehan, aye. Mr. Delahunt?\r\n Mr. Delahunt. No.\r\n The Clerk. Mr. Delahunt, no. Mr. Wexler?\r\n Mr. Wexler. Aye.\r\n The Clerk. Mr. Wexler, aye. Mr. Weiner?\r\n Mr. Weiner. Pass.\r\n The Clerk. Mr. Weiner, pass. Mr. Schiff?\r\n [No response.]\r\n The Clerk. Ms. Sanchez?\r\n Ms. Sanchez. Pass.\r\n The Clerk. Ms. Sanchez, pass. Mr. Van Hollen?\r\n Mr. Van Hollen. Aye.\r\n The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?\r\n [No response.]\r\n The Clerk. Mr. Chairman?\r\n Chairman Sensenbrenner. No.\r\n The Clerk. Mr. Chairman, no.\r\n Chairman Sensenbrenner. Members who wish to cast or change \r\ntheir votes? Gentlewoman from California, Mrs. Waters?\r\n Ms. Waters. Aye.\r\n The Clerk. Ms. Waters, aye.\r\n Chairman Sensenbrenner. Gentleman from New York, Mr. \r\nWeiner?\r\n Mr. Weiner. Aye.\r\n The Clerk. Mr. Weiner, aye.\r\n Chairman Sensenbrenner. Gentlewoman from California, Ms. \r\nSanchez?\r\n Ms. Sanchez. Aye.\r\n The Clerk. Ms. Sanchez, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes?\r\n [No response.]\r\n Chairman Sensenbrenner. If not, the clerk will report.\r\n Gentlewoman from Florida, Ms. Wasserman Schultz?\r\n The Clerk. Mr. Chairman, I don't have Ms. Wasserman \r\nSchultz.\r\n Ms. Wasserman Schultz. If I could be recorded as aye, \r\nplease.\r\n The Clerk. Ms. Wasserman Schultz, aye.\r\n Chairman Sensenbrenner. Clerk will report.\r\n The Clerk. Mr. Chairman, there are 13 ayes and 25 noes.\r\n Chairman Sensenbrenner. The amendment is not agreed to. Are \r\nthere further amendments?\r\n Mr. Conyers. Mr. Chairman, I ask unanimous consent to speak \r\nout of order?\r\n Chairman Sensenbrenner. The gentleman strikes the last \r\nword, is recognized for 5 minutes.\r\n Mr. Conyers. Mr. Chairman, we've been here nearly 12 hours. \r\nI am going to announce my intention after the next amendment to \r\ncall for the previous question, because most of the members \r\nhere who have additional amendments have agreed to hold them in \r\nabeyance so that we can move on tomorrow, having disposed of \r\nthis measure. And I propose further that all of us who do have \r\namendments, including myself, will be able to put them in the \r\nrecord collectively, indicating how--why they're important and \r\nhow we would have voted on them. And I ask that cooperation of \r\nmy colleagues, so that we may complete another very full round \r\nof hearings in the morning.\r\n Thank you.\r\n Chairman Sensenbrenner. Are there further amendments?\r\n Mr. Nadler. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from New York, Mr. \r\nNadler?\r\n Mr. Nadler. Mr. Chairman, I have an amendment at the desk. \r\nMr. Scott has an amendment at the desk. I ask unanimous consent \r\nthey be considered together.\r\n Chairman Sensenbrenner. The clerk will report the \r\namendments first.\r\n The Clerk. Mr. Chairman, I have two Nadler amendments, \r\nand----\r\n Mr. Nadler. The one he's going to hand you.\r\n The Clerk. Amendment to H.R. 3199----\r\n Mr. Nadler. 19--99, I'm sorry. You're right. You're right.\r\n The Clerk. Offered by Mr. Nadler of New York. Insert at the \r\nappropriate place in the bill the following: Section ___. \r\nJudicial Review. (a) In general. Section 2709 of title 18, \r\nUnited States Code, is amended by--(1) redesignating subsection \r\n(e) as subsection (g); and (2) inserting after subsection (d) \r\nthe following: (e) Judicial Review. (1) Request. Not later than \r\n20 days after any person receives a request pursuant to \r\nsubsection (b), or at any time before the return date specified \r\nin the request, whichever period is shorter, such person may \r\nfile, in the district court of the United States----\r\n Mr. Nadler. Mr. Chairman, I ask unanimous consent to waive \r\nthe reading of this amendment.\r\n Chairman Sensenbrenner. The gentleman from North Carolina \r\nreserves a point of order. Without objection, the amendment is \r\nconsidered as read.\r\n [The amendment of Mr. Nadler follows:]\r\n \r\n \r\n Chairman Sensenbrenner. Is there a second amendment that \r\nthe gentleman wishes to consider en bloc?\r\n Mr. Nadler. The second amendment is by Mr. Scott.\r\n Chairman Sensenbrenner. The clerk will report the second \r\namendment. Without objection--well, the clerk will report the \r\nsecond amendment.\r\n The Clerk. Amendment to H.R. 3199, offered by Mr. Scott of \r\nVirginia. Add at the end the following: Section 9. Factual \r\nbasis for pen register and trap and trade authority under \r\nSection 214 of the USA PATRIOT Act. (a) Application. \r\nSubsection----\r\n Chairman Sensenbrenner. Without objection, the amendment is \r\nconsidered as read.\r\n [The amendment of Mr. Scott follows:]\r\n \r\n \r\n\r\n \r\n\r\n\r\n Chairman Sensenbrenner. Without objection, the amendments \r\nare considered en bloc. The gentleman from New York is \r\nrecognized for 5 minutes.\r\n Mr. Nadler. Thank you, Mr. Chairman. I won't take 5 \r\nminutes. I will talk about the first amendment.\r\n Mr. Chairman, I mentioned on an earlier amendment that \r\nunder a Federal court decision under applicable Federal case \r\nlaw, Section 505 of the PATRIOT Act is unconstitutional on two \r\ngrounds: one, which the earlier amendment attempted to deal \r\nwith, was that the gag order had to be approved by a judge; \r\notherwise, it was a violation of the First Amendment; second of \r\nall, that an order for a national security letter has to be \r\nsubject to judicial review, or else it would be \r\nunconstitutional under the Fourth Amendment search and seizure \r\nprovision.\r\n What this amendment does is say that the recipient of a \r\nnational security letter from the FBI can go to Federal \r\ndistrict court and move to quash it and the court has to rule \r\non that. In other words, it provides for judicial--for the \r\npossibility of judicial review of a national security letter. \r\nThat's all it does, and without this amendment, frankly, I \r\nthink the courts will, in fact, hold this half of Section 505 \r\nunconstitutional. So I urge the adoption of this amendment.\r\n I yield back.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr.--\r\ndoes the gentleman from North Carolina insist on his point of \r\norder.\r\n Mr. Coble. I'll withdraw my point of order, Mr. Chairman.\r\n Chairman Sensenbrenner. The gentleman from Arizona, Mr. \r\nFlake.\r\n Mr. Flake. Mr. Chairman, I have the same issue that I had \r\nwith the last amendment. I'm working on a more comprehensive \r\namendment here on the national security letter, and I share the \r\ngentleman's concerns, but I object for the same reasons. I'm \r\nworking on something more comprehensive.\r\n I yield back.\r\n Mr. Nadler. The question is on the amendment----\r\n Mr. Scott. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from Virginia, Mr. \r\nScott.\r\n Mr. Scott. Mr. Chairman, on the second half of this en bloc \r\namendment, I'd like to make a comment. Move to strike the last \r\nword.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Scott. Mr. Chairman, in fact, this section deals with \r\npen register and trap and trace authority. The present law \r\nrequires a judge to issue the order upon the certification of \r\nthe applicant that the information is relevant to an \r\ninvestigation. This would require the applicant to make a \r\nstatement of facts relied upon by the applicant to justify his \r\nbelief that it's relevant and requires the judge to find \r\nsufficient facts to justify that belief that information likely \r\nto be obtained as foreign intelligence information not \r\nconcerning a United States person and is relevant to the \r\nongoing investigation of international terrorism or clandestine \r\nintelligence activities.\r\n Mr. Chairman, when you talk about trap and trace authority \r\nand pen register authority, you're talking about a situation \r\nwithout probable cause, but you do require articulable \r\nsuspicion. In 2000, this Committee voted overwhelmingly to \r\nraise the standard for pen register and trap and trace devices \r\nfrom a mere claim of relevance to a showing of specific and \r\narticulable facts. This amendment does that. And when we're \r\ntalking about the information you get with the traditional pen \r\nregisters, you get just phone numbers. When you expand this to \r\nelectronic and e-mail type situations, you get a lot more \r\ninformation.\r\n For example, if you get the header from an e-mail, you can \r\nget an entire organization's electronic mailing list. You can \r\nget the Web page that someone reads. You can find out what they \r\nsearched for. You can find out what pages they read or what \r\ninformation was on that Web page. All of that without probable \r\ncause of a crime being committed.\r\n I would hope, Mr. Chairman, that we would require at least \r\nthe articulable facts on which you are relying so that this \r\ninformation, which could be information of an innocent party \r\nrelevant to somebody else's investigation, your personal \r\ninformation is being discovered, I would hope you'd do that at \r\nleast on some articulable facts, not just on a representation. \r\nAnd so, Mr. Chairman, I would hope we'd adopt the amendment and \r\ndo what we did in 2000 to require those articulable facts to be \r\narticulated.\r\n I yield back.\r\n Chairman Sensenbrenner. The gentleman from Texas, Mr. \r\nGohmert.\r\n Mr. Gohmert. Thank you, Mr. Chairman.\r\n In response, I do rise in opposition to this amendment. \r\nFirst of all, the judge always has discretion when it comes to \r\ncredibility of the witness before him, so the certification in \r\nthis situation should be adequate, especially since we're \r\ntalking about a pen register and trap and trace, and as the \r\nfine gentleman pointed out, we're talking about phone numbers, \r\nnumbers that have emanated--calls that have emanated from those \r\nnumbers and are going to those numbers. There's no conversation \r\ninvolved. The Supreme Court, the very Supreme Court that has \r\nbeen able to read in privacy rights to the Constitution that I \r\ncan turn it every which way and have trouble finding, \r\nnonetheless has found there is no privacy right or interest in \r\nand to the content of the pen register or the trap and trace \r\ninformation. Accordingly, there is a lesser standard there.\r\n And I appreciate the gentleman's wishing to insert that the \r\njudge must find sufficient facts to justify the belief. The \r\nrest of the language after that is redundant. But, nonetheless, \r\nsince there is no privacy right and interest in and to that \r\ninformation, we believe that it's adequate.\r\n What can be done once they find those numbers, if calls are \r\ncoming to or from known terrorists, then that may give rise to \r\nprobable cause, and then certainly we need probable cause to go \r\nforward and get warrants and things of that nature. But that is \r\nwhy I would urge my colleagues to vote against the amendment?\r\n Mr. Scott. Would the gentleman yield?\r\n Mr. Gohmert. I yield back.\r\n Chairman Sensenbrenner. The gentleman yields back. The \r\nquestion is on--the question is on the amendment----\r\n Mr. Schiff. Mr. Chairman?\r\n Chairman Sensenbrenner. The gentleman from California, Mr. \r\nSchiff.\r\n Mr. Schiff. I move to strike the last word.\r\n Chairman Sensenbrenner. The gentleman is recognized for 5 \r\nminutes.\r\n Mr. Schiff. I won't take 5 minutes, Mr. Chairman, and \r\nactually I know we're going to call the question, so I want to \r\nspeak very briefly on final passage. We've made some very \r\nmodest changes to the bill today. I'd like to see more done. It \r\nstrikes a stronger balance in both giving law enforcement the \r\ncapability of investigating and prosecuting terrorism, but also \r\nprovides greater civil liberties protections which do not in \r\nany way inhibit the Government's ability to go after \r\nterrorists. I'm hoping the bill will be improved on the floor \r\nand in subsequent legislation. I intend to pass on final \r\npassage out of the Committee in the hopes that we have \r\nadditional improvements on the floor as this bill moves \r\nforward, and I thank the----\r\n Mr. Berman. Would the gentleman yield? Would the gentleman \r\nyield?\r\n Mr. Schiff. I'd be happy to yield to my colleague from \r\nCalifornia.\r\n Mr. Berman. Yeah, I want to--I have very much the same \r\nthoughts about this as the gentleman from California. Maybe \r\nthat's why we're both from California, except there are others \r\nwho have different thoughts. But there are just two--one \r\nspecific--there are a couple of specific things I just wanted \r\nto mention for taking the same view as Mr. Schiff. One is one \r\npart of this bill that makes an improvement over existing law \r\nis the incorporation of a relevance standard in 215, as well as \r\nsome of the procedural things, although they could be in my \r\nview better.\r\n But I do hope between now and the floor, I believe there is \r\nsomething between the relevance standard and--but far more \r\nexpansive than linking these--the subpoena for business records \r\nwith just specific facts dealing with an agent of a foreign \r\npower; that is, there are people associated with these agents \r\nof a foreign power and people we believe--we have reason to \r\nbelieve are agents of a foreign power that should be included, \r\nbut is less broad and all-encompassing than a relevance \r\nstandard. And I am hoping that between now and the floor there \r\ncan be effort, a real effort, a bipartisan effort to find an \r\nappropriate standard that lets law enforcement do what they \r\nneed to do in conducting an investigation, gathering the \r\nrecords to prevent and deter terrorist acts, and at the same \r\ntime not allow an open-ended, perhaps relevant but very \r\nunrelated to the purposes of a legitimate investigation, sweep-\r\nup of those records. And I must prefer changing that standard \r\nthan carving out exemptions for libraries or exemptions for \r\nbookstores or exemptions for medical records, which in some \r\ncases may have information very directly related to an agent \r\nfor a foreign power.\r\n So I'm hoping that between now and the floor there are some \r\nmore things that can be done, as well as tomorrow in the other \r\nlegislation we're marking up, and I agree with the gentleman \r\nfrom California.\r\n Ms. Lofgren. Would the gentleman yield?\r\n Mr. Schiff. I'd be happy to yield.\r\n Ms. Lofgren. I would just like to encourage the gentleman \r\nfrom California, Mr. Berman, in his efforts to change the \r\nrelevance standard. I think it's extremely important. I'm not, \r\ncertainly, prepared to support this measure until that is \r\naddressed, and hopefully you will succeed in your effort. And \r\nif there's anything I can do to assist, I would be happy to do \r\nso.\r\n However, I also believe that there are some carve-outs in \r\naddition to the change of the relevance statute that we should \r\nlook at, especially since the--there is a chilling effect on \r\nFirst Amendment exercise today, whether or not the--and the \r\nJustice Department says they have never used it for a library. \r\nI have no reason to disbelieve that. But Americans believe that \r\nthey have, and it chills the exercise of First Amendment. And I \r\nthink that is ample reason to pay attention since there is \r\nanother way to get information. And I thank the gentleman for \r\nyielding and look forward to working with you between now and \r\nthe floor.\r\n Mr. Schiff. I yield quickly to the gentleman from Virginia.\r\n Mr. Scott. Thank you, Mr. Chairman. Thank you. And I just \r\nwanted to comment on the gentleman from Texas, who pointed out \r\nthe phone numbers. But this is more than just phone numbers. \r\nThis is e-mail addresses where you can get--if you get the e-\r\nmail, you can get all the addresses on it. You can really get \r\nsomebody's entire mailing list. And if you get the Web page \r\nsomebody's looking at, you can find out what they were \r\nsearching for, what they read, what page they read. I mean, \r\nyou're getting some mighty good content when you get the Web \r\npage, the total address of the Web page.\r\n You need more than just a little certification of \r\nrelevance, and it's not just the terrorist information. \r\nAnything relevant to the investigation. That could be some \r\ninnocent people's information. You ought to need more than \r\njust----\r\n Chairman Sensenbrenner. The time of the gentleman from \r\nCalifornia has expired.\r\n The question is on agreeing to the amendments en bloc \r\noffered by the gentleman from New York, Mr. Nadler. Those in \r\nfavor will say aye? Opposed, no?\r\n The noes appear to have it. The noes have it, and the \r\namendments are not agreed to.\r\n Are there further amendments?\r\n [No response.]\r\n Chairman Sensenbrenner. If there are no further amendments, \r\nthe question occurs on the motion to report the bill H.R. 3199 \r\nfavorably as amended. A reporting quorum is present. All in \r\nfavor will say aye? Opposed, no?\r\n Mr. Conyers. Mr. Chairman, I request a recorded vote.\r\n Chairman Sensenbrenner. The ayes appear to have it. A \r\nrecorded vote is ordered. Those in favor of the motion to \r\nreport the bill favorably as amended will as your names are \r\ncalled answer aye, those opposed no, and the clerk will call \r\nthe roll.\r\n The Clerk. Mr. Hyde?\r\n Mr. Hyde. Aye.\r\n The Clerk. Mr. Hyde, aye. Mr. Coble?\r\n Mr. Coble. Aye.\r\n The Clerk. Mr. Coble, aye. Mr. Smith?\r\n [No response.]\r\n The Clerk. Mr. Gallegly?\r\n Mr. Gallegly. Aye.\r\n The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?\r\n Mr. Goodlatte. Aye.\r\n The Clerk. Mr. Goodlatte, aye. Mr. Chabot?\r\n Mr. Chabot. Aye.\r\n The Clerk. Mr. Chabot, aye. Mr. Lungren?\r\n Mr. Lungren. Aye.\r\n The Clerk. Mr. Lungren, aye. Mr. Jenkins?\r\n Mr. Jenkins. Aye.\r\n The Clerk. Mr. Jenkins, aye. Mr. Cannon?\r\n Mr. Cannon. Aye.\r\n The Clerk. Mr. Cannon, aye. Mr. Bachus?\r\n Mr. Bachus. Aye.\r\n The Clerk. Mr. Bachus, aye. Mr. Inglis?\r\n Mr. Inglis. Aye.\r\n The Clerk. Mr. Inglis, aye. Mr. Hostettler?\r\n Mr. Hostettler. Aye.\r\n The Clerk. Mr. Hostettler, aye. Mr. Green?\r\n Mr. Green. Aye.\r\n The Clerk. Mr. Green, aye. Mr. Keller?\r\n Mr. Keller. Aye.\r\n The Clerk. Mr. Keller, aye. Mr. Issa?\r\n Mr. Issa. Aye.\r\n The Clerk. Mr. Issa, aye. Mr. Flake?\r\n Mr. Flake. Aye.\r\n The Clerk. Mr. Flake, aye. Mr. Pence?\r\n Mr. Pence. Aye.\r\n The Clerk. Mr. Pence, aye. Mr. Forbes?\r\n Mr. Forbes. Aye.\r\n The Clerk. Mr. Forbes, aye. Mr. King?\r\n Mr. King. Aye.\r\n The Clerk. Mr. King, aye. Mr. Feeney?\r\n Mr. Feeney. Aye.\r\n The Clerk. Mr. Feeney, aye. Mr. Franks?\r\n Mr. Franks. Aye.\r\n The Clerk. Mr. Franks, aye. Mr. Gohmert?\r\n [No response.]\r\n The Clerk. Mr. Conyers?\r\n Mr. Conyers. No.\r\n The Clerk. Mr. Conyers, no. Mr. Berman?\r\n Mr. Berman. Pass.\r\n The Clerk. Mr. Berman, pass. Mr. Boucher?\r\n [No response.]\r\n The Clerk. Mr. Nadler?\r\n Mr. Nadler. No.\r\n The Clerk. Mr. Nadler, no. Mr. Scott?\r\n Mr. Scott. No.\r\n The Clerk. Mr. Scott, no. Mr. Watt?\r\n Mr. Watt. No.\r\n The Clerk. Mr. Watt, no. Ms. Lofgren?\r\n Ms. Lofgren. No.\r\n The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?\r\n Ms. Jackson Lee. No.\r\n The Clerk. Ms. Jackson Lee, no. Ms. Waters?\r\n Ms. Waters. No.\r\n The Clerk. Ms. Waters, no. Mr. Meehan?\r\n Mr. Meehan. No.\r\n The Clerk. Mr. Meehan, no. Mr. Delahunt?\r\n Mr. Delahunt. No.\r\n The Clerk. Mr. Delahunt, no. Mr. Wexler?\r\n Mr. Wexler. No.\r\n The Clerk. Mr. Wexler, no. Mr. Weiner?\r\n Mr. Weiner. No.\r\n The Clerk. Mr. Weiner, no. Mr. Schiff?\r\n Mr. Schiff. Pass.\r\n The Clerk. Mr. Schiff, pass. Ms. Sanchez?\r\n Ms. Sanchez. No.\r\n The Clerk. Ms. Sanchez, no. Mr. Van Hollen?\r\n Mr. Van Hollen. No.\r\n The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?\r\n Ms. Wasserman Schultz. No.\r\n The Clerk. Ms. Wasserman Schultz, no. Mr. Chairman?\r\n Chairman Sensenbrenner. Aye.\r\n The Clerk. Mr. Chairman, aye.\r\n Chairman Sensenbrenner. Are there further members who wish \r\nto cast or change their vote? The gentleman from Texas, Mr. \r\nSmith.\r\n Mr. Smith. Aye.\r\n The Clerk. Mr. Smith, aye.\r\n Chairman Sensenbrenner. Further members--the gentleman from \r\nTexas, Mr. Gohmert.\r\n Mr. Gohmert. Aye.\r\n The Clerk. Mr. Gohmert, aye.\r\n Chairman Sensenbrenner. Further members who wish to cast or \r\nchange their votes? If not, the clerk will report.\r\n The Clerk. Mr. Chairman, there are 23 ayes, 14 noes, and \r\ntwo pass.\r\n Chairman Sensenbrenner. And the motion to report favorably \r\nis agreed to.\r\n Without objection, the bill will be reported favorably to \r\nthe House in the form of a single amendment in the nature of a \r\nsubstitute----\r\n Mr. Scott. Mr. Chairman, reserving the right to object, and \r\nI'd ask under the reservation whether or not we can put \r\ninformation into the record at this point.\r\n Chairman Sensenbrenner. If the gentleman will allow me to \r\nrequest permission for members to include additional, \r\ndissenting, or minority views, that's the way you do it.\r\n Mr. Scott. Unanimous consent to enter into the record a \r\ndocument.\r\n Chairman Sensenbrenner. There is a unanimous consent \r\npresently pending. Does the gentleman withdraw his reservation?\r\n Mr. Scott. I withdraw.\r\n Chairman Sensenbrenner. Without objection, the bill will be \r\nreported favorably to the House in the form of a single \r\namendment in the nature of a substitute incorporating the \r\namendments adopted here today.\r\n Without objection, the staff is directed to make any \r\ntechnical and conforming changes, and all members will be give \r\n2 days as provided by the House Rules in which to submit \r\nadditional, dissenting, supplemental, or minority views.\r\n For what purpose does the gentleman from Virginia seek \r\nrecognition?\r\n Mr. Scott. Mr. Chairman, I ask unanimous consent for a \r\ndocument outlining some problems with the PATRIOT Act prepared \r\nby the Democratic Staff.\r\n Chairman Sensenbrenner. Without objection, the document \r\nwill be included in the record at this point.\r\n [The information follows:]\r\n \r\n \r\n Chairman Sensenbrenner. Pursuant to the authority granted \r\nthe Chair earlier today, the Committee stands in recess until \r\n9:30 tomorrow.\r\n [Whereupon, at 9:45 p.m., the Committee recessed, to \r\nreconvene at 9:30 a.m., Thursday, July 14, 2005.]\r\n\r\n DISSENTING VIEWS TO H.R. 3199, THE ``USA PATRIOT AND INTELLIGENCE \r\n REFORM REAUTHORIZATION ACT OF 2005''\r\n\r\n We dissent from the passage of H.R. 3199 in its present \r\nform.\r\n We oppose this legislation for several reasons. First, we \r\nnever have been given the facts necessary to fully evaluate the \r\noperation of the PATRIOT Act. Second, there are numerous \r\nprovisions in both the expiring and other sections of the \r\nPATRIOT Act that have little to do with combating terrorism, \r\nintrude on our privacy and civil liberties, and have been \r\nsubject to repeated abuse and misuse by the Justice Department. \r\nThird, the legislation does nothing to address the many \r\nunilateral civil rights and civil liberties abuses by the \r\nAdministration since the September 11 attacks. Finally, the \r\nbill does not provide law enforcement with any additional real \r\nand meaningful tools necessary to help our nation prevail in \r\nthe war against terrorism. Since 2002, 389 communities and \r\nseven states have passed resolutions opposing parts of the \r\nPATRIOT Act, representing over 62 million people.\\1\\ \r\nAdditionally, numerous groups ranging the political spectrum \r\nhave come forward to oppose certain sections of the PATRIOT Act \r\nand to demand that Congress conduct more oversight on its use, \r\nincluding the American Civil Liberties Union, American \r\nConservative Union, American Immigration Lawyers Association, \r\nAmerican Library Association, Center for Constitutional Rights, \r\nCenter for Democracy and Technology, Common Cause, Free \r\nCongress Foundation, Gun Owners of America, Lawyers' Committee \r\nfor Civil Rights, National Association for the Advancement of \r\nColored People (NAACP), National Association of Criminal \r\nDefense Lawyers, People for the American Way, and numerous \r\ngroups concerned about immigrants' rights.\\2\\\r\n---------------------------------------------------------------------------\r\n \\1\\ A Complete List of Communities That Have Passed Resolutions, is \r\navailable at http:\/\/www.aclu.org\/SafeandFree\/\r\nSafeandFree.cfm?ID=11294&c;=207 (last checked July 18, 2005). Colorado, \r\nMontana, Idaho, Maine, Vermont, Alaska, and Hawaii have all passed \r\nstatewide resolutions. Resolutions have also been passed in such \r\ncommunities as Lincoln, Nebraska; Des Moines, Iowa; Savannah, GA; \r\nPittsburgh, PA; Dallas, TX; New York, New York; Atlanta, GA; Portland, \r\nOregon; Philadelphia, PA; Dillion, Montana; and Detroit, Michigan.\r\n \\2\\ Other groups opposing the PATRIOT Act include the American-Arab \r\nAnti-Discrimination Committee, American Association of Law Libraries, \r\nAmerican Baptist Churches USA, American Humanist Association, American \r\nPolicy Center, Americans for Tax Reform, Arab American Institute, Asian \r\nAmericans for Equality, Asian American Legal Defense & Education Fund, \r\nAssociation of American Physicians and Surgeons, Association of \r\nResearch Libraries, Bill of Rights Defense Committee, Center for Human \r\nRights and Constitutional Law, Center for Justice and Accountability, \r\nCenter for National Security Studies, Chicago Committee to Defend the \r\nBill of Rights, Commission on Social Action of Reform Judaism, Consumer \r\nAction, Doctors for Disaster Preparedness, Electronic Privacy \r\nInformation Center, First Amendment Foundation, F.I.R.S.T. Project, \r\nInc., Friends Committee on National Legislation, Hate Free Zone \r\nCampaign of Washington, Immigrant Defense Project of the New York State \r\nDefenders Association, Immigrant Legal Resource Center, International \r\nInstitute of Boston, Japanese American Citizens League, Korean Resource \r\nCenter, Latin American Integration Center, Lawyers Committee for Human \r\nRights, League of United Latin American Citizens, Mennonite Central \r\nCommittee U.S., Washington Office, Mexican American Legal Defense and \r\nEducational Fund (MALDEF), Multiracial Activist, National Asian Pacific \r\nAmerican Legal Consortium, National Coalition Against Repressive \r\nLegislation, National Council of La Raza, National Employment Law \r\nProject, National Immigration Law Center, National Lawyers Guild, New \r\nYork Immigration Coalition, Northwest Immigrant Rights Project, OMB \r\nWatch, Organization of Chinese Americans, Police Accountability \r\nProject, Presbyterian Church USA, Washington Office, Special Libraries \r\nAssociation, Square One Media Network, Unitarian Universalist \r\nAssociation of Congregations, United Electrical, Radio and Machine \r\nWorkers of America, Washington Defenders Immigration Project, Women \r\nAgainst War Young Korean-American Service & Education Center (YKASEC). \r\nIn addition, a new coalition of conservative and liberal groups have \r\ncome together to urge increasing checks and balances on the powers the \r\ngovernment already has: Association of American Physicians and \r\nSurgeons, American Civil Liberties Union, American Conservative Union, \r\nAmericans for Tax Reform, American Policy Center, Citizens Committee \r\nfor the Right to Keep and Bear Arms, Eagle Forum, Free Congress \r\nFoundation, Libertarian Party, Gun Owners of America, Second Amendment \r\nFoundation.\r\n---------------------------------------------------------------------------\r\n While the PATRIOT Act may not deserve all of the ridicule \r\nthat is heaped against it, there is little doubt that the \r\nlegislation has been repeatedly and seriously misused by the \r\nJustice Department. Consider the following:\r\n It has been used more than 150 times to \r\n secretly search an individual's home, with nearly 90% \r\n of those cases having had nothing to do with terrorism.\r\n It was used against Brandon Mayfield, an \r\n innocent Muslim American, to tap his phones, seize his \r\n property, copy his computer files, spy on his children, \r\n and take his DNA, all without his knowledge.\r\n It has been used to deny, on account of his \r\n political beliefs, the admission to the United States \r\n of a Swiss citizen and prominent Muslim Scholar to \r\n teach at Notre Dame University.\r\n It has been used to unconstitutionally \r\n coerce an Internet Service Provider to divulge \r\n information about e-mail activity and web surfing on \r\n its system, and then to gag that Provider from even \r\n disclosing the abuse to the public.\r\n Because of gag restrictions, we will never \r\n know how many times it has been used to obtain reading \r\n records from library and bookstores, but we do know \r\n that libraries have been solicited by the Department of \r\n Justice--voluntarily or under threat of the PATRIOT \r\n Act--for reader information on more than 200 occasions \r\n since September 11.\r\n It has been used to charge, detain and \r\n prosecute a Muslim student in Idaho for posting \r\n Internet website links to objectionable materials, even \r\n though the same links were available on the U.S. \r\n Government's web site.\r\n Even worse than the PATRIOT Act has been the abuse of \r\nunilateral powers by the Administration. Since September 11, \r\nour government has detained and verbally and physically abused \r\nthousands of immigrants without time limit, for unknown and \r\nunspecified reasons, and targeted tens of thousands of Arab-\r\nAmericans for intensive interrogations and immigration \r\nscreenings. All this serves to accomplish is to alienate Muslim \r\nand Arab Americans--the key groups to fighting terrorism in our \r\nown county--who see a Justice Department that has \r\ninstitutionalized racial and ethnic profiling, without the \r\nbenefit of a single terrorism conviction.\r\n Nor is it helpful when our government condones the torture \r\nof prisoners at home and abroad, authorizes the monitoring of \r\nmosques and religious sites without any indication of criminal \r\nactivity, and detains scores of individuals as material \r\nwitnesses because it does not have evidence to indict them. \r\nThis makes our citizens less safe not more safe, and undermines \r\nour role as a beacon of democracy and freedom.\r\n While the Majority asserts it is not the duty of this \r\nCommittee to respond to these abuses, we believe that ignoring \r\nthese and other cases of abuse by our own government \r\nconstitutes an abdication of our responsibility as legislators, \r\nand should be addressed by this legislation.\r\n The following is a brief background and description of the \r\nPATRIOT Act and the proposed reauthorization legislation, \r\nfollowed by a listing of our various concerns with the \r\nlegislation.\r\n\r\n TABLE OF CONTENTS\r\n\r\n I. Background and Description of Legislation.........................\r\n II. We Have Never Been Given the Necessary Facts to Properly Evaluate \r\n the PATRIOT Act...................................................\r\nIII. There are Numerous Provisions in Both the Expiring and Other Parts \r\n of the PATRIOT Act that are Largely Unrelated to Terrorism and \r\n Unnecessarily Intrude on Privacy Rights and Other Civil Liberties.\r\n A. Specific Concerns with Expiring Provisions\r\n 1. Sec. 206--Roving Surveillance Authority under \r\n the Foreign Intelligence Surveillance Act\r\n 2. Sec. 209--Seizure of Voicemail Messages Pursuant \r\n to Warrants\r\n 3. Sec. 212--Emergency Disclosures of \r\n Communications Held by Phone Companies and \r\n Internet Service Providers\r\n 4. Sec. 214--Pen Register and Trap and Trace \r\n Authority Under FISA\r\n 5. Sec. 215--Access to Records and Other Items \r\n under the Foreign Intelligence Surveillance Act \r\n (Library Provision)\r\n 6. Sec. 218--Foreign Intelligence Information\r\n 7. Sec. 220--Nationwide Service of Search Warrants \r\n for Electronic Evidence\r\n 8. ``Lone Wolves'' as Agents of a Foreign Power\r\n B. Specific Concerns with Other Provisions of the \r\n Patriot Act\r\n 1. Sec. 213--Authority for Delaying Notice of the \r\n Execution of a Warrant (Sneak and Peek Provision)\r\n 2. Sec. 216--Extension of Trap and Trace\/Pen Orders\r\n 3. Sec. 411--Revocation of Visas\r\n 4. Sec. 412--Detention of Immigrants\r\n 5. Sec. 505--Miscellaneous National Security \r\n Authorities ``National Security Letters''\r\n 6. Sec. 802--Definition of Domestic Terrorism\r\n 7. Sec. 805--Material Support for Terrorism\r\n C. General Concerns with Patriot Act Reauthorization\r\n 1. Lack of a General Sunset\r\n 2. Lack of General Oversight\r\n IV. The Legislation Does Nothing to Address the Many Unilateral Abuses \r\n of The Administration in the War Against Terror...................\r\n A. Material Witness Statute\r\n B. Torture\r\n C. Rendition\r\n D. Enemy Combatants\r\n E. Selective Enforcement of Immigration Provision\/\r\n Racial Profiling\r\n F. Excessive Collection of Personal Data\r\n G. Unauthorized Detention of Aliens\r\n H. Closed Immigration Trials\r\n I. Attorney General's Guidelines on Domestic \r\n Surveillance\r\n J. Mis-Classification of Terrorism Investigations\r\n K. Safe Havens for Terrorist Assets\r\n V. The Legislation Does Not Provide Law Enforcement with the \r\n Resources and Tools It Needs to Meaningfully Combat Terrorism.....\r\n A. Preventing Terrorists from Buying Guns\r\n B. Preventing the Sale and Manufacture of .50-caliber \r\n Guns\r\n C. Regulating the Sale of Smokeless and Black Powder\r\n D. Increasing Grants to First Responders\r\n E. Securing our Nation's Ports\r\n F. Eliminating Trade with Terrorist Countries\r\n G. Penalizing those who Leak Classified Information\r\n H. Improving the Terrorist Watch List\r\n VI. Description of Amendments Offered by Democratic Members...........\r\nVII. Conclusion........................................................\r\nAppendix A: Section-by-Section Summary of the USA PATRIOT Act of \r\n 2001, H.R. 3162................................................\r\nAppendix B: Summary of 16 Expiring Provisions....................\r\n\r\n I. Background and Description of Legislation\r\n\r\n The PATRIOT Act was passed into law on October 26, 2001. A \r\nmajor concern with this legislation is the process by which it \r\nwas enacted into law. Within days of the September 11 attacks, \r\nthen-Attorney General John Ashcroft publicly announced that the \r\nJustice Department was drafting a new bill that Congress should \r\npass within one week because the new powers were needed to \r\nfight terrorism. An initial draft of the legislation was leaked \r\nto the media soon after; it is believed that Republican Members \r\nand staff of the Committee were provided actual copies of the \r\nbill. A few days after the draft was leaked, the Department \r\nsent a new, official draft to Congress that consisted of its \r\nwish list of new law enforcement, immigration, and intelligence \r\nauthorities. The hearing was so rushed that then-Attorney \r\nGeneral Ashcroft would not even submit himself to a full round \r\nof questions by the members.\r\n The U.S. House Judiciary Committee worked out a bipartisan \r\ncompromise with the Administration. The Committee passed the \r\ncompromise legislation in the form of H.R. 2975 on an \r\nunprecedented 36-0 vote.\\3\\ While H.R. 2975 was being prepared \r\nfor floor consideration, however, the Administration reneged on \r\nthe deal and Chairman Sensenbrenner introduced a new and more \r\naggressive terrorism bill, H.R. 3108, on the morning of October \r\n12, 2001. That same day, the Rules Committee issued the rule \r\nfor H.R. 2975 and provided that H.R. 3108 would be the adopted \r\nsubstitute amendment to H.R. 2975. The very same day, the House \r\npassed the new legislation by a vote of 337-79 under a closed \r\nrule.\r\n---------------------------------------------------------------------------\r\n \\3\\ H.R. Rep. No. 236, 107th Cong., 2d Sess. (2001).\r\n---------------------------------------------------------------------------\r\n While the House was moving forward on new legislation, the \r\nAttorney General turned his attention to the Senate, which had \r\nyet to pass a new terrorism bill. The Attorney General publicly \r\nindicated that Senate Democrats questioning the scope of the \r\nDepartment's new bill would be responsible for future terrorist \r\nattacks if a new terrorism law was not passed in time.\\4\\\r\n---------------------------------------------------------------------------\r\n \\4\\ See David G. Savage & Eric Lichtblau, Ashcorft Deals with \r\nDaunting Responsibilities, L.A. Times, Oct. 28, 2001, at A10 (``When \r\nthe Attorney General's imposed deadline [for passage of new terrorism \r\nlegislation] passed, Ashcroft suggested that if a second terrorist \r\nattack occurred, the recalcitrant lawmakers would deserve the \r\nblame.'').\r\n---------------------------------------------------------------------------\r\n Compromise discussions proceeded and eventually broke down. \r\nBased in part on these discussions, Chairman Sensenbrenner \r\nintroduced the new legislation as H.R. 3162 on October 23, \r\n2001. H.R. 3162 was brought straight to the floor under \r\nsuspension of the rules and passed the House the next day by a \r\nvote of 357-66. The Senate passed the bill on October 25, 2001, \r\nby a vote of 98-1.\\5\\\r\n---------------------------------------------------------------------------\r\n \\5\\ Senator Russ Feingold (D-WI) voted ``No'' and Senator Mary \r\nLandrieu (D-LA) did not vote.\r\n---------------------------------------------------------------------------\r\n Although it was originally hoped that the legislation would \r\nsimply give the Justice Department a set of specific tools to \r\nhelp it fight terrorism, the legislation ended up being a broad \r\nexpansion of law enforcement powers that the Department had \r\nbeen seeking for years, but had been unable to convince \r\nCongress to enact.\r\n As enacted into law, the PATRIOT Act included more than 160 \r\nseparate sections (Appendix A provides a section by section \r\ndescription of those provisions). In addition, due in part to \r\nthe concern by many Members with the rushed nature and broad \r\nscope of the PATRIOT Act, it was determined that 16 of the \r\nsections authorizing new surveillance powers should sunset on \r\nDecember 31, 2005 (Appendix B contains a more detailed section \r\nby section description of those 16 expiring provisions).\r\n H.R. 3199 would make permanent all of the sunset provisions \r\nof the PATRIOT Act, save Section 206, concerning John Doe \r\nRoving Wiretaps, and Section 215, concerning foreign \r\nintelligence orders for any tangible thing, which are renewed \r\nfor 10 years each. It also makes permanent the material support \r\nand lone wolf authorities created in the intelligence reform \r\nbill last fall.\\6\\\r\n---------------------------------------------------------------------------\r\n \\6\\ Intelligence Reform and Terrorism Prevention Act of 2004, Pub. \r\nL. No. 108-458, Sections 6603 and 6001, respectively.\r\n---------------------------------------------------------------------------\r\n The bill makes several changes to current law. First, H.R. \r\n3199 allows a Section 215 recipient to challenge his order in \r\nwriting before a three-judge panel of the Foreign Intelligence \r\nSurveillance Court (FISC) in Washington, DC, and assert that \r\nFISA, as written was wrongly applied to his order. Arguably, it \r\nalso provides that a person may discuss his 215 order with his \r\nattorney.\r\n Second, H.R. 3199 creates a ``return'' on Section 206 John \r\nDoe Roving Wiretap orders. It simply provides that after a \r\nroving wiretap is issued, the Justice Department return to the \r\nFISA court and certify what facilities were ultimately tapped \r\nwithin 10 days.\r\n Third, the legislation amends Section 203(b) of the PATRIOT \r\nAct. Section 203(b) allows federal agencies to share \r\ninformation it gathers from electronic, oral and wire \r\nintercepts with other departments and agencies. This bill would \r\nrequire the government to notify the court that approved the \r\noriginal surveillance of the sharing.\r\n Fourth, H.R. 3199 alters Section 207 of the PATRIOT Act \r\npertaining to the length of FISA orders. It limits the new \r\nextended durations to non-U.S. persons, and extended pen \r\nregister and trap and trace orders to one year.\r\n Fifth, during the markup, a Lungren amendment was accepted \r\nthat created an annual reporting requirement on Section 212, \r\nwhich immunizes private companies for their voluntary \r\ndisclosures of electronic information to law enforcement in \r\nemergency situations.\r\n Sixth, during markup, a Schiff amendment was accepted which \r\nwould add to the list of activities which, if done willfully, \r\nwill result in violating the statute which prohibits the \r\nplanning of terrorist attacks on mass transportation (18 USC \r\n1993(a)(3)).\r\n Seventh, during markup, a Lofgren amendment was accepted \r\nwhich amends Section 1001 of the PATRIOT Act to require the \r\nInspector General of the Department of Justice to also report \r\non the detentions of persons by the United States, including \r\ninformation about the length of detention, the offense, and the \r\nconditions and frequency of their access to counsel.\r\n Eighth, during markup, a Schiff amendment was accepted \r\nwhich (a) adds to the list of predicate offenses which are \r\nconsidered ``federal crimes of terrorism''; (b) allows for the \r\nforfeiture of property involved in the trafficking of weapons \r\nof mass destruction; and (c) adds numerous crimes related to \r\nterrorism to the list of offenses for which oral and wire \r\ncommunications may be intercepted under 18 U.S.C. 2516.\r\n Finally, during the markup, Mr. Nadler and Mr. Flake \r\noffered a bipartisan amendment to address the notification \r\ndelay period relating to the Section 213 ``sneak and peek'' \r\nprovision. Under their amendment, the initial period of delayed \r\nnotification of secret searches may not be for more than 180 \r\ndays, and extensions may be given for not more than 90 days at \r\na time.\r\n It is important to note that the 9\/11 Commission \r\nrecommended that to retain any new authorities, ``The burden of \r\nproof for retaining a particular government power should be on \r\nthe executive to explain (a) that the power materially enhances \r\nsecurity and (b) that there is adequate supervision of the \r\nexecutive's use of those powers to ensure protection of civil \r\nliberties.'' \\7\\ We have never been given the facts necessary \r\nto properly evaluate its operation; however, based upon the \r\ninformation we have been able to glean our review indicates \r\nthat this burden has not been met. For these and the reasons \r\nset forth herein, we oppose H.R. 3199\r\n---------------------------------------------------------------------------\r\n \\7\\ The 9\/11 Commission Report, National Commission on Terrorist \r\nAttacks Upon the United States, at 395.\r\n---------------------------------------------------------------------------\r\n\r\n II. We Have Never Been Given the Necessary Facts To Properly Evaluate \r\n the PATRIOT Act\r\n\r\n Neither the original USA PATRIOT Act nor this \r\nreauthorization legislation were subject to proper oversight. \r\nSince the enactment of the PATRIOT Act, the Department has \r\nfailed to account for its use. In addition, the pending \r\nlegislation was deprived of any deliberative consideration \r\nprior to the full Committee markup.\r\n First, the Department has thwarted efforts on the part of \r\nDemocratic Members to learn how the PATRIOT Act has been \r\nenforced. While the Department has responded to Committee \r\ninquiries pertaining to the Act, in many instances it states \r\nthat it does not keep track of how certain authorities are used \r\nor qualifies the answers it does give. For instance, in its \r\nmost recent submission to the Committee, the Department states \r\nit does not know how many times Foreign Intelligence \r\nSurveillance Act authorities have been used to investigate \r\nterrorism crimes versus other offenses.\\8\\\r\n---------------------------------------------------------------------------\r\n \\8\\ Letter from the Honorable Alberto Gonzales, Attorney General of \r\nthe United States, to the Honorable F. James Sensenbrenner, Jr., \r\nChairman, U.S. House Comm. on the Judiciary 3-4 (July 12, 2003).\r\n---------------------------------------------------------------------------\r\n On April 1, 2003, the Committee sent the Department an \r\nexhaustive series of questions on the Act. In response to a \r\nquestion about how many mosques have been contacted for \r\nmembership lists, the Department merely states that it has \r\nconducted demographic surveys of mosques; it simply ignores the \r\nquestion.\\9\\ It further states it does not keep racial or \r\nethnic characteristic information on material witness detainees \r\nand, as such, is unable to answer a question about that \r\nmatter.\\10\\ When it chooses to answer a question, the \r\nDepartment often includes a qualifier, making the answer \r\nmeaningless. For example, when replying to a question about \r\nmaterial witness detainees since September 11, 2001, having \r\naccess to legal counsel, the Department says that ``every \r\nsingle person detained as a material witness as part of the \r\nSeptember 11 investigation has been represented by counsel.'' \r\n\\11\\ The answer left open the possibility that a material \r\nwitness as part of a non-September 11 terrorism investigation \r\nwas denied access to counsel.\r\n---------------------------------------------------------------------------\r\n \\9\\ Letter from the Honorable Jamie E. Brown, Acting Ass't Attorney \r\nGeneral, U.S. Dep't of Justice, to the Honorable F. James \r\nSensenbrenner, Jr., Chairman, U.S. House Comm. on the Judiciary 56 (May \r\n13, 2003).\r\n \\10\\ Id. at 50.\r\n \\11\\ Id. at 48.\r\n---------------------------------------------------------------------------\r\n In addition, the Department prohibits public review of its \r\nactivities by sending some information about the PATRIOT Act \r\nunder classified cover. Interestingly, in at least two \r\ninstances, the Department has declassified relevant information \r\nonly when it was politically expedient. In the summer of 2003, \r\nthere was significant criticism of section 215 of the Act from \r\nthe media, civil liberties groups, and libraries and bookstores \r\nbased on the belief that the provision gave unconstitutionally \r\nbroad power to seize documents and things about anybody, \r\nincluding patrons' library and bookstore records in violation \r\nof the First Amendment.\\12\\ Attempting to quell such rising \r\ncriticism, on September 18, 2003, the Attorney General \r\ndeclassified a memorandum he had written to FBI Director Robert \r\nMueller showing that section 215 had never been used as of that \r\ndate.\\13\\ In addition, then-Attorney General John Ashcroft \r\ndeclassified a memo written by 9\/11 Commissioner Jamie Gorelick \r\nconcerning the ``wall'' between criminal and intelligence \r\ninvestigations as a way to turn attention away from his failure \r\nto appropriately focus on counterterrorism.\\14\\\r\n---------------------------------------------------------------------------\r\n \\12\\ Warren Richey & Linda Feldmann, Has Post-9\/11 Dragnet Gone too \r\nFar?, Christian Science Monitor, Sept, 12, 2003, at 1; Howard Troxler, \r\nNew Powers? Not Unless the Feds Get Old Ones Right, St. Petersburg \r\nTimes, Sept. 10, 2003, at 1B; Jack Torry, Opinions Clash on Terrorism-\r\nFighting Patriot Act, Columbus Dispatch, Sept. 7, 2003, at 1C; Peter \r\nSchworm, Librarians Fight Search Law, Boston Globe, Aug. 21, 2003 at 1; \r\nNat Hentoff, Ashcroft Moves to Encroach further on our Liberties, \r\nChicago Sun-Times, Aug. 24, 2003, at 30 (op-ed); James Bovard, America \r\nFights for Freedom to Read, Balt. Sun, Aug. 18, 2003, at 15A; Congress \r\nShould Reform Dangerous Patriot Act, Det. News, Aug. 1, 2003 at 10A \r\n(editorial); Ellen Goodman, It's Time for Congress to Take Away \r\nAshcroft's Fishing License, Balt. Sun, at July 24, 2003, at 17A \r\n(editorial); Lillian Thomas, Rights Groups Rally Opposition to National \r\nAnti-Terrorism Law, Pittsburgh Post-Gazette, July 17, 2003, at B5; Don \r\nBehm, Bookstores Balk at Record-Seizure Law, Milwaukee Journal-\r\nSentinel, June 23, 2003, at 2A; Wayne Woodlief, Ashcroft's Act Borders \r\non Unpatriotic, Boston Herald, June 8, 2003, at 25 (op-ed).\r\n \\13\\ Memorandum from the Honorable John D. Ashcroft, Attorney \r\nGeneral of the United States, to the Honorable Robert S. Mueller, \r\nDirector, FBI (Sept. 18, 2003).\r\n \\14\\ Jason Zengerle, ``Critiquing Ashcroft's 9\/11 Show,'' The New \r\nRepublic, April 15, 2004.\r\n---------------------------------------------------------------------------\r\n The Department's lack of accountability is even more \r\ntroubling considering that it was derelict in its duties to \r\nCongress just prior to the markup. On May 19, 2005, over one \r\nmonth after the Committee's April 6, 2005 hearing with the \r\nAttorney General, Chairman Sensenbrenner transmitted to the \r\nDepartment a series of questions about the Act for himself,\\15\\ \r\nRanking Member John Conyers, Rep. Zoe Lofgren, and Rep. Martin \r\nMeehan (D-MA).\\16\\ While the Department answered the Chairman's \r\nquestions on June 10, 2005,\\17\\ the answers to the questions \r\nsubmitted by the three Democratic Members were answered only on \r\nthe morning of the full Committee markup over one month later, \r\nand most of the answers were incomplete and unresponsiive.\\18\\\r\n---------------------------------------------------------------------------\r\n \\15\\ Letter from the Honorable F. James Sensenbrenner, Jr., \r\nChairman, U.S. House Comm. on the Judiciary, to the Honorable Alberto \r\nGonzales, Attorney General of the United States (May 19, 2005) \r\n(transmitting questions on behalf of himself).\r\n \\16\\ Letter from the Honorable F. James Sensenbrenner, Jr., \r\nChairman, U.S. House Comm. on the Judiciary, to the Honorable Alberto \r\nGonzales, Attorney General of the United States (May 19, 2005) \r\n(transmitting questions on behalf of Democratic Members).\r\n \\17\\ Letter from the Honorable Alberto Gonzales, Attorney General \r\nof the United States, to the Honorable F. James Sensenbrenner, Jr., \r\nChairman, U.S. House Comm. on the Judiciary (June 10, 2005) (sent under \r\nclassified cover).\r\n \\18\\ Letter from the Honorable Alberto Gonzales, Attorney General \r\nof the United States, to the Honorable F. James Sensenbrenner, Jr., \r\nChairman, U.S. House Comm. on the Judiciary (July 12, 2005).\r\n---------------------------------------------------------------------------\r\n Similarly, Rep. Zoe Lofgren attempted to exercise her \r\noversight authority and requested to see applications for \r\nsearch and seizure orders obtained under Section 214 (pen \r\nregister and trap-and-trace orders) and Section 215 (business \r\nrecords) of the USA PATRIOT Act. A letter was sent on behalf of \r\nMs. Lofgren and the other Members of the Committee who wished \r\nto review these order applications on July 7, 2005.\\19\\ The \r\nletter asked that they be allowed to review these orders on \r\neither Monday or Tuesday, July 11 or July 12, as the Committee \r\nwas set to markup H.R. 3199 on Wednesday. On Monday, July 11, \r\ntwo days before the Committee was set to meet, DOJ responded \r\nthat usually only redacted copies are provided to the \r\nIntelligence Committees; DOJ was asked to determine if our \r\nmembers could also review these orders. Finally, at 5:50 on \r\nTuesday, July 12, 2005, approximately 16 hours before the \r\nCommittee markup was to begin, the DOJ responded that Committee \r\nmembers could review a sample of FISA applications at the \r\nSenate Select Committee on Intelligence, and could not review \r\nFISA applications at main Justice.\r\n---------------------------------------------------------------------------\r\n \\19\\ Letter from Perry Apelbaum, Minority Chief Counsel, House \r\nJudiciary Committee, to Assistant Attorney General William E. \r\nMoschella, July 7, 2005. Letter on file with Committee.\r\n---------------------------------------------------------------------------\r\n This entire process illuminates the steps DOJ has taken to \r\nprevent the Democratic members from performing effective \r\noversight. Second, Ms. Lofgren and the other Committee members \r\nhave the authority and necessary clearance to review these \r\norders and there was no clear reason why the Judiciary \r\nCommittee members should be blocked from reviewing orders that \r\nthe Intelligence Committees can review. Finally, this \r\ninterchange undermines one of the main reasons the Majority \r\nuses to justify making the PATRIOT Act permanent the Majority \r\nargues that the Members can exercise oversight if they so \r\nchoose, and that they have not chosen to exert this oversight. \r\nHere, the Members attempted to review the authority granted to \r\nlaw enforcement by the PATRIOT Act under FISA and they were \r\ndeliberately delayed and thwarted in their attempt to perform \r\ntheir constitutional duty of oversight of the executive branch. \r\nThus, it is not that the Members do not wish to perform \r\noversight of the use of these authorities; rather, it is that \r\nthe Administration has conducted a deliberate attempt to deny \r\nand block certain Members ability to do so.\r\n The concerted effort to thwart any meaningful oversight and \r\nreview of the Patriot Act is also evident by the manner in \r\nwhich the Majority chose to respond to the Minority's request \r\nfor additional day of oversight hearings on the legislation. \r\nDuring the course of the Committee's oversight hearing with \r\nDeputy Attorney General Comey, and pursuant to House Rule XI, \r\nclause 2(j)(1), the Minority requested an additional day of \r\noversight hearings on the reauthorization of the Patriot Act. \r\nThe purpose of the additional day of hearings was to provide \r\nMembers with a last chance opportunity to explore important \r\nissues within the scope of the Patriot Act which up until that \r\npoint had not been adequately covered.\r\n Unfortunately in responding of the Minority's request, the \r\nMajority decided to engage in a series of actions which \r\nfrustrated the Minority's party efforts to conduct such a \r\nhearing. Namely, the Majority chose to schedule the requested \r\nday of hearings with less than forty-eight hours notice; \r\nrequired the Minority to provide the Majority with a list of \r\nwitnesses and witness testimony in less than twenty-four hours; \r\ndecided to schedule the hearing at 8:30 am on a Friday, a date \r\nin which there where no votes on the House floor; and chose to \r\nunilaterally adjourn the hearing without first obtaining or \r\nseeking either a unanimous consent request or a vote of the \r\nCommittee members present. As pointed out in the resolution \r\noffered by Mr. Nadler raising a question of privilege regarding \r\nthese actions, many of these aforementioned deeds were in clear \r\nviolation of numerous House rules and certainly contrary to the \r\nCommittee's usual custom and practices.\r\n Finally, Members of the Committee were deprived of any \r\nmeaningful review of H.R. 3199 after its introduction. The \r\nMajority distributed the legislation only on the late afternoon \r\nof Friday, July 8, 2005, just five days before it was scheduled \r\nto be considered by the Committee. In addition, this \r\nlegislation was not subject to any hearing, either at the full \r\nCommittee or subcommittee level, or to a subcommittee markup. \r\nHearings and subcommittee markups are preliminary stages of \r\nreview that are customary in the House for any legislation; \r\nthey permit the Members and other interested parties to \r\nconsider and debate specific legislation prior to final \r\nconsideration before either the full Committee or the full \r\nHouse.\\20\\ The Majority, unfortunately, bypassed these \r\nimportant steps and immediately scheduled H.R. 3199 for a full \r\nCommittee vote.\r\n---------------------------------------------------------------------------\r\n \\20\\ We would note that even in the immediate aftermath of the \r\nSeptember 11 attacks, a preliminary draft of the PATRIOT Act was \r\nsubject to a legislative hearing in the Committee. Administration's \r\nDraft Anti-Terrorism Act of 2001: Hearing Before the House Comm. on the \r\nJudiciary, 107th Cong., 1st Sess. (Sept. 24, 2001).\r\n---------------------------------------------------------------------------\r\n\r\nIII. There are Numerous Provisions in Both the Expiring and Other Parts \r\n of the PATRIOT Act That Are Largely Unrelated to Terrorism and \r\n Unnecessarily Intrude on Privacy Rights and Other Civil Liberties\r\n\r\n There are numerous provisions in the PATRIOT Act, that have \r\nraised concerns. The following is a description of some of the \r\nconcerns and issues.\r\n\r\n A. SPECIFIC CONCERNS WITH EXPIRING PROVISIONS\r\n\r\n1. Sec. 206--Roving surveillance authority under the Foreign \r\n Intelligence Surveillance Act\r\n\r\n This section allows the FBI to use roving wiretaps under \r\nFISA. This means that the FBI can obtain a single court order \r\nto tap any phone they believe a foreign agent would use, \r\ninstead of getting separate court orders for each phone. \r\nAdditionally, the government does not need to name the target, \r\nthus allowing so-called ``John Doe'' wiretaps. The impact of \r\nallowing ``John Doe'' roving wiretaps is that the government \r\ncan legally tap almost any phone of almost any person without \r\nhaving to show that the person is in any way connected to \r\nespionage or terrorism, or even suspected of criminal \r\nwrongdoing. Thus, the Fourth Amendment rights of ordinary \r\ncitizens against such search and seizures can be completely \r\ncircumvented.\r\n Few disagree that roving wiretaps are important. Indeed, \r\nthey have been useful in criminal investigations since 1986. \r\nHowever, FISA roving wiretaps go far beyond criminal wiretaps. \r\nFirst, FISA allows for blanket tapping, such as tapping all the \r\npayphones in the target's neighborhood or all of his relatives, \r\nwithout showing that the target will actually use the \r\ndevice.\\21\\ Second, agents seeking a roving wiretap need not \r\neven identify a specific suspect and may instead get ``John \r\nDoe'' warrants.\\22\\ These add up to roving ``John Doe'' \r\nwarrants that require so little specificity that they can be \r\neasily abused. The number of times this authority has been used \r\nand in what manner was classified \\23\\ until April 6 2005, when \r\nthe Attorney General admitted to using it 49 times since the \r\nPATRIOT Act passed.\r\n---------------------------------------------------------------------------\r\n \\21\\ John Podesta, ``USA PATRIOT Act: The Good, the Bad and the \r\nSunset,'' Human Rights Magazine, Section of Individual Rights and \r\nResponsibilities, American Bar Association, Winter 2002.\r\n \\22\\ ``Let the Sun Set on PATRIOT,'' Electronic Frontier \r\nFoundation, available at www.eff.org.\r\n \\23\\ Oversight answers, submitted by Daniel J. Bryant, Assistant \r\nAttorney General, July 26, 2002, on file with the House Judiciary \r\nCommittee; The PATRIOT Act: Myth vs. Reality, U.S. Department of \r\nJustice, September 2003.\r\n---------------------------------------------------------------------------\r\n The Justice Department argues that this authority is \r\navailable in criminal cases. However, a criminal wiretap \r\napplication must include specific information about the crime, \r\nthe location to be tapped and the identity of the target, if \r\nknown.\\24\\ A judge must also find probable cause that (1) the \r\ntarget has or will commit a crime, (2) the communications to be \r\nseized are related to that crime, and (3) the phones to be \r\ntapped will be used by the target, as well as that normal \r\ninvestigative procedures have failed or will fail.\r\n---------------------------------------------------------------------------\r\n \\24\\ 18 U.S.C.A Sec. 2518(1)(b) (2005).\r\n---------------------------------------------------------------------------\r\n This statute does allow roving wiretaps. However, a roving \r\nwiretap triggers a whole new section that requires that the \r\napplication ``identif[y] the person committing the offense and \r\nwhose communications are to be intercepted.'' \\25\\ In other \r\nwords, the Justice Department must choose between a John Doe or \r\na roving wiretap in criminal cases--it cannot have both at the \r\nsame time.\\26\\\r\n---------------------------------------------------------------------------\r\n \\25\\ 50 U.S.C.A. 2518(11) (2005).\r\n \\26\\ The Justice Department will claim that it has the authority to \r\nissue similar wiretaps in criminal cases, and cites support from three \r\ncircuits. Yet, the cases that found the use of roving wiretaps to be \r\nconstitutional did so because of the other requirements in the Title \r\nIII statute that make the warrant particular enough to meet Fourth \r\nAmendment muster. These requirements are not in FISA, however. Also, it \r\nappears that those cases were not about ``John Doe'' wiretaps and \r\ntherefore not quite as ``similar'' as the Justice Department claims.\r\n---------------------------------------------------------------------------\r\n\r\n2. Sec. 209--Seizure of voicemail messages pursuant to warrants\r\n\r\n Section 209 of the PATRIOT Act expands the ability of law \r\nenforcement to seize voicemails. Before the Act, voicemail \r\nmessages on an answering machine in one's home could be seized \r\npursuant to a search warrant. Voicemail messages stored with a \r\nservice provider, however, required a Title III order. A Title \r\nIII order actually offers higher protections than a search \r\nwarrant: a Title III warrant requires more information than \r\njust a showing of probable cause and the probable cause section \r\nof a Title III order is more extensive than an affidavit for a \r\nsearch warrant.\\27\\\r\n---------------------------------------------------------------------------\r\n \\27\\ A Title III search warrant or order requires what is known at \r\n``probable cause plus.'' Rather than showing there is probable cause to \r\nbelieve, for example, that a particular phone line is being used in \r\nconnection with criminal activity, a Title III order must prove that \r\nthe particular phone line is ``clearly being used'' for illegal \r\npurposes. Furthermore, in order to obtain a Title III warrant, the \r\nofficer must show why normal investigative procedures have failed.\r\n---------------------------------------------------------------------------\r\n Some of us are concerned Section 209 may unreasonably \r\nexpand the authority of law enforcement to seize the content \r\ncontained in voicemail messages by amending the law to treat \r\nstored voicemails like other stored data. Section 209 may \r\ncircumvent the Fourth Amendment requirements of notice and \r\nprobable cause for voicemails stored by a third party, leading \r\nto a real concern about how private and personal communications \r\nshould be treated in connection with criminal investigations.\r\n Section 209 amends the law to treat stored voicemails like \r\nother stored data (such as emails). While Section 209 seemingly \r\nrequires a warrant to seize voicemail messages, the law amended \r\nby this provision actually makes a key distinction between \r\nolder and newer stored emails, and this distinction now applies \r\nto stored voicemails. Those voicemails that are considered \r\n``old'' do not require a warrant or Title III order to be \r\nseized--which requires probable cause--but rather merely \r\nrequire a subpoena. Therefore, a possibly reasonable power of \r\nseizing stored voicemails has been expanded unreasonably to \r\nallow their seizure by any prosecutor at any time, thus \r\nvitiating existing privacy rights. And, merely because the \r\nvoicemails are stored by a third party, rather than stored on a \r\nhome answering machine, they can be seized without notice to \r\nthe target. This violates the longstanding constitutional \r\nprincipal that ``the Fourth Amendment protects people, not \r\nplaces,'' expressed by the Supreme Court in Katz v. United \r\nStates.\\28\\ As a result, Section 209 allows law enforcement to \r\nseize the content contained in voicemails without any of the \r\nnecessary Fourth Amendment protections. Finally, Section 209 \r\napplies to not just to terrorism investigations, but to any \r\ncriminal investigation.\r\n---------------------------------------------------------------------------\r\n \\28\\ 389 U.S. 347, 351 (1967).\r\n---------------------------------------------------------------------------\r\n\r\n3. Sec. 212: Emergency disclosures of communications held by phone \r\n companies and Internet service providers\r\n\r\n This section permits telephone companies and Internet \r\nService Providers (ISPs) to disclose to the government, without \r\npenalty, customer communications and records if they think \r\nthere is a danger of death or serious injury. This section \r\nprecludes liability regardless of whether the company \r\ninnocently stumbles on the information itself and approaches \r\nthe government, or whether law enforcement initiates the \r\ndisclosure itself. Because this section directly amended Title \r\n18 of the U.S. Code, it can be used in any run-of-the-mill \r\ncriminal investigation and has no ties to terrorism cases. In \r\nfact, all of the examples cited by the Justice Department are \r\nnon-terror cases, including a bomb threat against a school, \r\nnumerous kidnaping cases, and computer hacking threats.\\29\\\r\n---------------------------------------------------------------------------\r\n \\29\\ See Report From the Field: The USA PATRIOT Act at Work, U.S. \r\nDepartment of Justice, July 2004.\r\n---------------------------------------------------------------------------\r\n Section 225 of the Homeland Security Act (HSA) of 2002 \\30\\ \r\nmade permanent the provision that allowed the disclosure of \r\ncontent. Only the portion of Section 212 that authorized the \r\ndisclosure of records is scheduled to sunset at the end of the \r\nyear. However, it is important to note that the new content \r\ndisclosure rules in the HSA that prematurely reversed the \r\nPATRIOT Act sunset are even more permissive than originally \r\npassed by the PATRIOT Act. By all accounts, the new provision \r\nis far worse as it, ``lower[s] the relevant standard from \r\n`reasonable belief' of a life-threatening emergency to a `good \r\nfaith belief,' allow[s] communications providers to use the \r\nemergency exception to disclose data to any government entity, \r\nnot just law enforcement, and drop[s] the requirement that the \r\nthreat to life or limb be immediate.'' \\31\\\r\n---------------------------------------------------------------------------\r\n \\30\\ Pub. L. No. 107-296 (2002).\r\n \\31\\ Let the Sun Set on PATRIOT, Electronic Frontier Foundation, \r\navailable at www.eff.org.\r\n---------------------------------------------------------------------------\r\n There are several concerns with the emergency disclosure \r\nprovision, Section 212: First, there is absolutely no judicial \r\noversight, including after-the-fact review by a court such as \r\nwhat happens under FISA.\\32\\ The Justice Department has not \r\naddressed why a similar provision could not be put into the \r\ncriminal law. Second, no notice is given to the target, even \r\nafter the emergency has been resolved. Third, there is no \r\nconsequence for a rogue or careless law enforcement officer who \r\nmay overstate a threat in order to elicit communications \r\nwithout obtaining a subpoena or warrant. Under Fourth Amendment \r\ncontrolled searches, the government would be prohibited from \r\nusing the evidence at trial, yet there appears to be no such \r\nprotection for these disclosures. Finally, the Homeland \r\nSecurity Act of 2002 required each entity to receive one of \r\nthese disclosures to report it to the Attorney General within \r\n90 days.\\33\\ The Attorney General is then to report to \r\nCongress, but never has. Unfortunately, H.R. 3199 makes no \r\neffort to reign these powers in and provide even limited \r\nsafeguards to ensure these authorities are not abused.\r\n---------------------------------------------------------------------------\r\n \\32\\ The Attorney General may authorize emergency orders, but must \r\nthen apply for a FISA Court warrant within 72 hours. If it is not \r\ngranted, the exclusionary rule prevents the information from being used \r\nin court.\r\n \\33\\ Pub. L. No. 107-296 Sec. 225(d) (2002).\r\n---------------------------------------------------------------------------\r\n\r\n4. Sec. 214--Pen register and trap and trace authority under FISA\r\n\r\n This section made it easier for the FBI to get a pen \r\nregister or trap-and-trace under FISA.\\34\\ The FBI needs to \r\nprove the order is needed to obtain foreign intelligence \r\ninformation not concerning a U.S. person or to protect against \r\ninternational terrorism or clandestine intelligence activities. \r\nPrior to the PATRIOT Act, the FBI needed to establish that the \r\ntelephone line in question had been used or was about to be \r\nused in connection with terrorism or a crime; this requirement \r\nwas deleted.\r\n---------------------------------------------------------------------------\r\n \\34\\ A pen register is used to record the phone numbers that are \r\ndialed from a target phone. A trap-and-trace is used to record the \r\nphone numbers of the incoming calls to a target phone.\r\n---------------------------------------------------------------------------\r\n As the majority and the DOJ points out, search warrants are \r\nnot required for pen register and trap and trace activities \r\nunder the criminal law.\\35\\ However, FISA pen register\/trap and \r\ntrace orders not only are not based on probable cause, but are \r\nnot necessarily targeted at an individual based on even a \r\nlesser showing of involvement in any wrongdoing or any \r\nactivities that otherwise might legitimately expose him to \r\nclandestine surveillance by the FBI. Before section 214, the \r\ngovernment had to prove that the target was an agent of a \r\nforeign power; now, they need only prove that the information \r\nis related to a terror or intelligence investigation. This \r\nextremely broad qualification of a FISA pen register\/trap and \r\ntrace order has led many groups to oppose it.\\36\\\r\n---------------------------------------------------------------------------\r\n \\35\\ Smith v. Maryland, 442 U.S. 735, 744 (1979) (using the phone \r\ninvolved a third party--the phone company--and therefore destroyed any \r\nexpectation of privacy the target had).\r\n \\36\\ See, for example, Electronic Privacy Information Center ``The \r\nUSA PATRIOT Act,'' at www.epic.org\/privacy\/terrorism\/usapatriot\/.\r\n---------------------------------------------------------------------------\r\n\r\n5. Sec. 215--Access to records and other items under the Foreign \r\n Intelligence Surveillance Act (so-called ``Library'' Provision)\r\n\r\n Section 215 of the PATRIOT Act expanded the FBI's ability \r\nto obtain ``any tangible thing'' under the Foreign Intelligence \r\nSurveillance Act. Before the Act, the government could obtain \r\nrecords only from hotels\/motels, storage facilities and car \r\nrental companies, and only if they pertain to ``agents of a \r\nforeign power.'' Now, it can seek ``any tangible thing'' from \r\nany one at all as long as it is relevant to investigation.\r\n Because the statute is so broad, the government could \r\ninvestigate consumers' reading and Internet habits and private \r\nrecords (such as credit card information, medical records, and \r\nemployment histories). The Government will argue that it \r\nalready had access to these sorts of business records in \r\ncriminal investigations using grand jury subpoenas. However, \r\nthe government's powers here are wholly different because there \r\nis no requirement of relevance to any criminal activity, as \r\nthere is with grand jury investigations. A federal court found \r\nthat section 215 implicates new constitutional problems: (1) it \r\napplies to any tangible thing, and is no longer limited merely \r\nto business records, and (2) it no longer requires ``specific \r\nand articulable facts giving reason to believe that the person \r\nwhom the records pertain is a foreign power or an agent of a \r\nforeign power,'' but only that ``the records concerned are \r\nsought for an authorized investigation.'' \\37\\ Thus, Section \r\n215 can be used against any person even if the person is NOT \r\nsuspected of wrongdoing or of any connection to a foreign \r\npower. Thus, there is virtually no limit to what these orders \r\ncan get, and H.R. 3199 did nothing to improve this section.\r\n---------------------------------------------------------------------------\r\n \\37\\ ACLU v. Dept. of Justice, 321 F.Supp.2d 24 (D.D.C. 2004) \r\n(citing section 215 in its current form, and its original form, Pub. L. \r\nNo. 105-272 (1998)).\r\n---------------------------------------------------------------------------\r\n We are concerned that these sections can be used to obtain \r\nvery private information on purely innocent people. Whether it \r\nis library records, medical information or gun purchase \r\nrecords, the government should have access to them only when it \r\ncan at clearly state why it needs them and why the person they \r\npertain to is a terrorist or closely related to one. For \r\nexample, the American Library Association has confirmed that \r\nthe federal government has gone into a library and asked for a \r\nlist of everyone who checked out a book on Osama bin Laden. In \r\nthe wake of the horrific attack of September 11, it is obvious \r\nthat many innocent people may go seeking information on why it \r\nhappened. This search clearly gathered information on innocent \r\npeople, who had the right to privacy in their reading habits. \r\nAs a matter of fact, since 9\/11, the American Library \r\nAssociation found that libraries have received over 200 formal \r\nand informal requests for materials, including 49 requests from \r\nfederal officers, although it cannot be confirmed what \r\nauthority (if any) was cited by the federal officers for \r\nobtaining this information.\r\n Importantly, recipients of 215 orders are prohibited from \r\ndisclosing that they received such an order to anyone but their \r\nattorneys. As a result, even though Section 215 allows for \r\nlibrary reading habits to be surveilled and other private \r\ninformation to be seized, we have absolutely no way of knowing \r\nhow often this authority has been used. And, recipients of 215 \r\norders have no way of denouncing or challenging government \r\noverreach or abuse.\r\n The only amendment on this issue that was accepted was one \r\noffered by Mr. Flake, though most of us feel that it is clear \r\nthat this amendment does not solve the problem. Mr. Flake's \r\namendment would allow 215 order recipients to consult their \r\nattorneys ``with respect to'' the order, rather than ``in \r\nresponse to.'' Mr. Flake argues that this change would \r\ntherefore allow a Section 215 order to consult an attorney \r\nabout challenging the order. However, this small cosmetic \r\nchange does not clearly give Section 215 recipients the right \r\nto challenge 215 orders. The right to consult an attorney does \r\nnot directly lead to an ability to challenge the order in \r\ncourt, and this amendment does nothing to relieve the burden of \r\nthe review mechanism created by H.R. 3199 or ensure that \r\nrecipients will have enough information to successfully \r\nchallenge problematic 215 orders.\r\n In order to be meaningful, reform of section 215 must \r\ndirectly address its current infirmities. First, the standard \r\nfor issuing a section 215 order must be reformed to require \r\nsome individual suspicion that the records related to a spy, \r\nterrorist or other foreign agent, which may include the records \r\nof other (innocent) third parties where those records are \r\nclearly relevant to the activities of the subject under \r\ninvestigation. Second, a right to challenge must be a \r\nmeaningful one. A meaningful right to challenge cannot be \r\nlimited to the FISA court itself, which sits only in \r\nWashington, DC, operates in secret according to highly \r\nclassified procedures, and ordinarily hears only from the \r\ngovernment. The challenge must be based not only on whether the \r\norder is legal, but should allow for challenges on the basis \r\nthat an order is unreasonable, oppressive, seeks privileged \r\ninformation. Finally, the hearing on the challenge should not \r\nbe limited to a one-sided presentation of government attorneys \r\nbased on secret evidence.\r\n While a court has not ruled on the ultimate constitutional \r\nmerits on section 215, it may well be found to violate the \r\nFirst Amendment because it (a) places a prior restraint on free \r\nspeech and (b) monitors the free speech activities of its \r\ntargets, and to violate the Fourth Amendment because it fails \r\nto provide notice to the target.\\38\\ Minority members offered \r\nmany amendments that would have protected the privacy of \r\nAmericans; all were rejected on party line votes.\\39\\\r\n---------------------------------------------------------------------------\r\n \\38\\ ACLU, Surveillance Under the USA PATRIOT Act, available at \r\nwww.aclu.org\/Safeandfree.\r\n \\39\\ The Amendments were as follows:\r\n Mr. Nadler offered several amendments. He offered an amendment to \r\nlimit 215 orders to ``agents of a foreign power.'' Mr. Nadler also \r\noffered an amendment on the gag order contained in Section 215. His \r\namendment would still allow gag orders, but the government would first \r\nneed to show that the gag order is necessary, rather than having gag \r\norders be automatically applied to any Section 215 recipient. For \r\nexample, a gag order could be obtained if the government showed \r\ndisclosure would endanger someone's life. Additionally, gag orders, if \r\nobtained, would have time limit of 180 days, with extensions available \r\nfor up to 180 days. Mr. Nadler offered another amendment to the \r\nnondisclosure provision in Section 505. His amendment would allow \r\ndisclosure to one's attorney or to anyone to whom disclosure is \r\nnecessary to comply, thus making Section 505 have the same \r\nnondisclosure provision as Section 215. In addition, the amendment \r\nlimited the nondisclosure period to 90 days. The government may request \r\nextensions of up to 180 days if they can show a clear harm would result \r\nfrom disclosure.\r\n Mr. Schiff offered an amendment to require 215 orders to be made by \r\nthe Director of the Federal Bureau of Investigation;\r\n Ms. Jackson Lee offered an amendment to exempt medical records from \r\nthe 215 authority.\r\n Mr. Watt and Ms. Waters offered a compromise amendment which would \r\nprovide for automatic gag orders for Section 215 order recipients but \r\nwould limit the nondisclosure period to 180 days. The amendment also \r\nallowed the government to btain an extension for up to 180 days if it \r\ncould show the disclosure would result in a clear harm such as \r\nendangering someone's life.\r\n---------------------------------------------------------------------------\r\n On June 15 of this year, however, the House of \r\nRepresentatives voted to prevent funds from being spent on any \r\n215 orders that would produce library circulation records, \r\npatron lists, book sales records or book costumer records.\\40\\ \r\nThe Amendment to the SCJSS 2006 Appropriations bill passed 238-\r\n187.\r\n---------------------------------------------------------------------------\r\n \\40\\ Amendment 280 to H.R. 2862, the Science, the Department of \r\nState, Justice, and Commerce Appropriates Act for Fiscal Year 2006.\r\n---------------------------------------------------------------------------\r\n\r\n6. Sec. 218--Foreign intelligence information\r\n\r\n This section says the FBI needs to aver that a \r\n``significant'' purpose of a FISA order request is to gather \r\nforeign intelligence; before the Act, the FBI needed to show \r\nthat obtaining foreign intelligence was the ``primary purpose'' \r\nof the order.\r\n The Department has confirmed that ``there was no legal \r\nimpediment to introducing in a criminal prosecution evidence \r\nobtained through FISA before the USA PATRIOT Act.'' \\41\\ \r\nInstead, the Department says these barriers resulted from \r\n``certain court decisions and administrative practice by the \r\nDepartment.'' \\42\\ Impediments to sharing information between \r\nintelligence and law enforcement investigators were, therefore, \r\nalmost entirely the result of administrative barriers, rather \r\nthan statutory requirements that were eased by the USA PATRIOT \r\nAct. This was confirmed by the FISC Court of Review.\\43\\ \r\nBecause the Court held that there was no legal ``wall'' to \r\nbegin with, there is no reason to believe that letting this \r\nsection sunset would reimpose the ``wall.''\r\n---------------------------------------------------------------------------\r\n \\41\\ May 13, 2003 Letter at 12 (emphasis in original).\r\n \\42\\ Id. at 13.\r\n \\43\\ In re: Sealed Case No. 02-001, 310 F.3d 717 (F.I.S. Ct. Rev. \r\n2002).\r\n---------------------------------------------------------------------------\r\n Again, it is important to note that PATRIOT Act has already \r\ncreated permanent authorization for information sharing between \r\nthe criminal and intelligence agencies: Section 905 requires \r\nthe Attorney General to provide terror-related information that \r\nis uncovered in the process of a criminal investigation to the \r\nDirector of National Intelligence, and section 504 allows FISA \r\ninformation to be given to the Criminal Division.\\44\\\r\n---------------------------------------------------------------------------\r\n \\44\\ Kate Martin, ``Why Section 203 and 905 Should be Modified,'' \r\nAmerican Bar Association's Patriot Debates, available at http:\/\/\r\nwww.patriotdebates.com\/203-2#opening.\r\n---------------------------------------------------------------------------\r\n The Justice Department has provided a small number of \r\nanecdotal stories of how FISA obtained evidence helped \r\nprosecute standard crimes, although it refuses to give a full \r\naccounting about how this provision has gone above and beyond \r\nsharing already allowed under the law.\\45\\ The Department also \r\nhas admitted to sending over 4,500 FISA files to the Criminal \r\nDivision, although it could not account for how many of those \r\nresulted in prosecutions.\\46\\\r\n---------------------------------------------------------------------------\r\n \\45\\ Oversight answers, submitted by Jamie E. Brown, Acting \r\nAssistant Attorney General, May 13, 2003, on file with the House \r\nJudiciary Committee; Oversight answers, submitted by Daniel J. Bryant, \r\nAssistant Attorney General, July 26, 2002, on file with the House \r\nJudiciary Committee.\r\n \\46\\ Oversight answers, submitted by Jamie E. Brown, Acting \r\nAssistant Attorney General, May 13, 2003, on file with the House \r\nJudiciary Committee.\r\n---------------------------------------------------------------------------\r\n The effect of letting the status quo continue is that \r\nevidence obtained from a FISA warrant under FISA's statutory \r\n``probable cause'' standard can be given to non-terror criminal \r\nprosecutors who are governed by the higher standard of 4th \r\nAmendment probable cause. In fact, the lower standard FISA \r\nwarrant can be sought for criminal prosecution purposes, as \r\nlong as terrorism or national intelligence is some small (but \r\n``significant'') part of the reason given. The long-standing \r\npolicy of not letting criminal prosecutors direct intelligence \r\ninvestigations has been vitiated.\r\n We are aware of at least one significant abuse of this new \r\nauthority by the Department. The FBI used Section 218 to \r\nsecretly break into Brandon Mayfield's home, download the \r\ncontents of four computer drives, take DNA evidence and take \r\n355 digital photographs. Though the FBI admits Mr. Mayfield is \r\ninnocent, they still will not divulge the secret court order to \r\nhim, or allow him to defend himself in court. Given that this \r\nsearch took place after the terrorist attack for which Mr. \r\nMayfield was wrongly suspected, and not before, it is unclear \r\nhow the search was for any reason but to find evidence \r\nincriminating Mr. Mayfield.\r\n Strikingly, under Section 218, a notice is not provided to \r\nthe target unless the evidence collected is used at trial. \r\nThus, a target of a search may never learn that their house or \r\nbusiness was searched and that evidence was seized. \r\nFurthermore, as seen in the Brandon Mayfield case, the \r\ngovernment refuses to even let Mr. Mayfield see the order for \r\nthe search that took place under Section 218, thus preventing \r\nhim from being able to defend himself.\\47\\\r\n---------------------------------------------------------------------------\r\n \\47\\ Ms. Jackson Lee introduced an amendment to provide notice of a \r\nsearch or surveillance under Section 218 if the target is found to be a \r\nUnited States person who is not an agent of a foreign power. The \r\namendment would mandate that notification be given no later than 180 \r\ndays after it is determined that a U.S. person is not an agent of a \r\nforeign power, and this amendment covered all forms of surveillance and \r\nsearches allowed under Section 218. However, this reasonable amendment \r\nwas rejected by the Majority.\r\n---------------------------------------------------------------------------\r\n\r\n7. Sec. 220--Nationwide service of search warrants for electronic \r\n evidence\r\n\r\n Section 220 allows a single court to issue a search warrant \r\nfor electronic evidence that is valid nationally. According to \r\nthe Department's May 13, 2003 letter, it has used this \r\nauthority to track a fugitive and to track a hacker who stole \r\ntrade secrets from a company and then extorted money from \r\nit.\\48\\ Importantly, Section 220 deals only with ordinary \r\ncriminal investigations. It is doubtful Congress meant to \r\nexpand this power to even ordinary criminal investigations in \r\nits rush to pass the USA PATRIOT Act.\r\n---------------------------------------------------------------------------\r\n \\48\\ Id. at 24.\r\n---------------------------------------------------------------------------\r\n The biggest threat is that Section 220 allows law \r\nenforcement to ``forum shop'' by having a more lenient judge in \r\na different jurisdiction that may have little or no nexus to \r\nthe actual target issue a warrant. Thus, law enforcement \r\nofficers can game the system to ensure they obtain the warrants \r\nthey want. Furthermore, nationwide search warrants decrease the \r\npossibility of judicial review--a person served with a search \r\nwarrant in New Jersey, but issued by a judge in California, is \r\nhighly unlikely to travel to California to challenge even a \r\nfacially unconstitutional warrant.\\49\\\r\n---------------------------------------------------------------------------\r\n \\49\\ Mr. Watt introduced an amendment to fix precisely this \r\nproblem. Mr. Watt's amendment would allow the target of a search \r\nwarrant to challenge it in the district where it is served, or, if the \r\nwarrant is executed against a corporation, in any district where the \r\ncorporation is incorporated. This reasonable amendment would ensure \r\nthat people are able to assert their constitutional rights against \r\nunreasonable searches and seizures. However, the majority rejected this \r\ncommonsense approach.\r\n---------------------------------------------------------------------------\r\n\r\n8. ``Lone Wolves'' as Agents of a Foreign Power\r\n\r\n Section 6001 of the Intelligence Reform and Terrorism \r\nPrevention Act of 2004 created the so-called ``lone wolf'' \r\nprovision of FISA redefining the ``agent of a foreign power'' \r\nto include those who ``engage in international terrorism or \r\nactivities in preparation therefore.'' In other words, agents \r\nof a foreign power no longer need to have any connection to a \r\nforeign power and instead can be persons working alone. This is \r\nlimited to non-U.S. persons.\\50\\ The effect of this change is \r\nto allow individuals to be targeted and surveilled under the \r\nFISA powers usually reserved for those who are clearly agents \r\nof a foreign power. Importantly, the powers used under FISA \r\nsignificantly relax many of the protections provided those \r\ntargeted in criminal investigations.\r\n---------------------------------------------------------------------------\r\n \\50\\ Although a leaked ``PATRIOT II'' bill authored by the Justice \r\nDepartment would have expanded the lone wolf provision to cover U.S. \r\npersons as well.\r\n---------------------------------------------------------------------------\r\n The purpose of FISA always has been espionage and terrorism \r\nsurveillance against foreign governments, foreign groups, or \r\nindividuals associated with such governments or groups. Section \r\n6001 expanded FISA to include any single person who engages in \r\na violent act that (1) transcends national boundaries and (2) \r\nis intended to coerce the government or a civilian population. \r\nThe ``foreign agent'' probably cause that the ``lone wolf'' \r\nprovision repealed was critical to the constitutionality of \r\nFISA surveillance and this change threatened to render the FISA \r\nstatute unconstitutional. Importantly, when this provision \r\npassed the House Judiciary Committee in the markup of H.R. 10, \r\nit contained a rebuttable presumption that a FISA judge could \r\ninvoke to approve surveillance based on a presumption that the \r\nsuspect was acting for a foreign power, even though there was \r\nno evidence the target had ties to foreign governments or an \r\ninternational terrorist group. This was an important \r\nmodification to the ``lone wolf'' power that would have given \r\nmore discretion to the FISA court to use this power when the \r\ncircumstances suggested the suspect was acting for a foreign \r\npower, but would not have allowed surveillance when it is clear \r\nthere was no foreign power at all. That provision was removed \r\nbefore the bill went to the floor and passed as part of the \r\nintelligence bill.\r\n\r\n B. SPECIFIC CONCERNS WITH OTHER PROVISIONS OF PATRIOT ACT\r\n\r\n Concerns have been expressed with several other provisions \r\nof the Act. Though a number of germane amendments were offered \r\nby Democratic Members at the markup, all were rejected by the \r\nMajority.\r\n\r\n1. Sec. 213--Authority for delaying notice of the execution of a \r\n warrant (so-called ``sneak and peek'' provision)\r\n\r\n This section permits Federal agents to search a home and \r\nindefinitely delay notification of that search to a suspect if \r\na court finds ``reasonable cause'' that immediate notification \r\ncould have an adverse result (also known as ``sneak and peek'' \r\nsearches).\\51\\ With court permission, the government also can \r\nuse this authority to seize property and delay notification to \r\nthe suspect of that seizure.\r\n---------------------------------------------------------------------------\r\n \\51\\ USA PATRIOT Act Sec. 213.\r\n---------------------------------------------------------------------------\r\n The majority argues that these search warrants were \r\navailable in many circuits before the PATRIOT Act. But as CRS \r\nexplains, section 213 breaks new ground by answering questions \r\nthe courts had not yet confronted: ``The Act extends the \r\ndelayed notification procedure of chapter 121, which operates \r\nin an area to which the Fourth Amendment is inapplicable, to \r\ncases to which the Fourth Amendment applies, 18 U.S.C.'' \\52\\ \r\nBefore, delayed notice was reserved for (1) exigent \r\ncircumstances and (2) when notification of a search\/seizure of \r\nstored communications would interfere with an investigation, \r\nand many courts had yet to rule on the government's contention \r\nthat delayed notice searches were appropriate in far broader \r\ncircumstances. This latter exception was based on the courts' \r\nrepeated finding that stored communications did not have Fourth \r\nAmendment protections, and therefore notice was not required. \r\nThe problem with section 213 is that it extends this \r\n``investigative interference'' exception to all criminal \r\nactivity, where the Fourth Amendment is clearly implicated and \r\nwhere many court had not yet ruled on the appropriate \r\nstandards.\r\n---------------------------------------------------------------------------\r\n \\52\\ Charles Doyle, The PATRIOT ACT: A Legal Analysis, CRS, April \r\n15, 2002 at 65.\r\n---------------------------------------------------------------------------\r\n Additionally, two other concerns have been raised: First, \r\nthe 5th and final ``catch-all provision'' that delayed \r\nnotification justification is necessary because otherwise the \r\ninvestigation will be ``seriously jeopardized'' allows the \r\ngovernment to delay notification in almost any instance; in \r\nfact, in 92 out of 108 cases, this provision was used to \r\njustify delayed notification. Second, Section 213 as currently \r\nwritten allows law enforcement to indefinitely delay \r\nnotification.\r\n In its May 13, 2003 letter to the Committee, the Department \r\nindicated that it has used this authority 47 times.\\53\\ On \r\nApril 5, 2005, in his testimony before the Senate, the Attorney \r\nGeneral upped the number to 155. Delays in notification of \r\nsneak and peek have been for unspecified durations in many \r\ncases and as long as 180 days in others; in fact, the longest \r\ndelay has been for 406 days.\\54\\ The government has sought to \r\ndelay notification of sneak and peeks 248 times and every \r\nsingle request has been granted.\\55\\\r\n---------------------------------------------------------------------------\r\n \\53\\ May 13, 2003 Letter at 8.\r\n \\54\\ April 4, 2005 Letter.\r\n \\53\\ May 13, 2003 Letter at 11.\r\n---------------------------------------------------------------------------\r\n It is important to note that by and large, this provision \r\nis not being used in terrorism cases. In a July 5, 2005 letter \r\nto Rep. Bobby Scott, DOJ said Section 213 had been used 153 \r\ntimes as of January 31, 2005; only eighteen (11.8%) uses \r\ninvolved terrorism investigations. Thus, nearly 90% of ``sneak \r\nand peek'' warrants were used in ordinary criminal \r\ninvestigations.\\56\\ We have learned of the following additional \r\nconcerns:\r\n---------------------------------------------------------------------------\r\n \\56\\ 97 warrants were used in drug investigations and 38 were used \r\nin other criminal investigations. Letter on file with the House \r\nJudiciary Committee.\r\n---------------------------------------------------------------------------\r\n Abuse of delayed notice warrants: In April \r\n 2005, DOJ said 90-day delays are common, and that \r\n delays in notification have lasted for as long as 180 \r\n days. The DOJ is getting more strident, as in 2003, the \r\n DOJ said its longest delay was 90 days.\r\n Abuse of extensions: In May 2003, DOJ \r\n reported it had asked for 248 delay notification \r\n extensions, including multiple extension requests for a \r\n single warrant, and that the courts had granted EVERY \r\n SINGLE REQUEST, the longest being 406 days.\r\n Abuse of ``catch-all provision'': In an \r\n April 4, 2005 letter to Chairman Sensenbrenner, DOJ \r\n reports 92 out of 108 (85%) sneak and peek warrants \r\n were justified because notification would ``seriously \r\n jeopardize the investigation'' and in 28 instances that \r\n was the sole ground for delaying notice.\r\n Significantly, this committee never approved Section 213 \r\nand its expansive invasions into a person's privacy. It was \r\nslipped into the final bill by the Rules Committee, and was \r\nnever sanctioned by the Committee of jurisdiction. Concerns \r\nabout this authority are widespread; in fact, Rep. Butch Otter \r\nsuccessfully offered an amendment to the Commerce-Justice-State \r\nappropriations bill, H.R. 2799, on the House floor that would \r\nhave prevented delay of notification entirely\r\n\r\n2. Sec. 216--Extension of Trap and Trace\/ Pen Register Orders\r\n\r\n Capturing internet and e-mail data is fundamentally \r\ndifferent than capturing phone data. While the majority argues \r\nthat this section does not capture ``content,'' there is \r\nnothing in this section that describes what content is. So, for \r\nexample, the statute is unclear whether the Justice Department \r\ncan capture just www.aclu.org, or www.aclu.org\/newmember\/\r\nregistration, the latter being more than just an address, and \r\nclearly indicating the content. There is also concern that as a \r\ntechnical matter, it is impossible to separate out an e-mail \r\naddress from the content being sent either from it or to \r\nit.\\57\\\r\n---------------------------------------------------------------------------\r\n \\57\\ Nancy Chang, The USA PATRIOT Act: What's So Patriotic About \r\nTrampling on the Bill of Rights?, Center for Constitutional Rights, \r\nNovember 2001.\r\n---------------------------------------------------------------------------\r\n\r\n3. Section 411, Revocation of Visas\r\n\r\n Section 411 of the PATRIOT Act allows the government to \r\nrevoke visas. It expanded the reasons for inadmissibility to \r\ninclude association with a designated terror group, whether the \r\nperson actually knew that the people or group he was \r\nassociating were linked to terrorism. We are concerned that \r\nthis section applies retroactively, and has been abused against \r\npeaceful alien visitors years after their so-called association \r\nwith terrorists:\r\n For example, Professor Tariq Ramadan's visa to teach at \r\nNotre Dame was revoked upon charges that he supported \r\nterrorism; Notre Dame, Scotland Yard, and Swiss intelligence \r\nall agree the charges were groundless.\\58\\\r\n---------------------------------------------------------------------------\r\n \\58\\ Deborah Sontag, ``Mystery of the Islamic Scholar Who was \r\nBarred by the U.S.,'' New York Times, October 6, 2004, A1.\r\n---------------------------------------------------------------------------\r\n Similarly, Nicaraguan Professor Dora Maria Tellez was \r\ndenied her visa to teach at Harvard due to her association with \r\nthe Sandinistas in the 1980s, where she helped to overthrow a \r\nbrutal dictator whom the U.S. supported.\\59\\\r\n---------------------------------------------------------------------------\r\n \\59\\ Associated Press, ``ACLU Requests Documents on Visas,'' New \r\nYork Times, March 17, 2005, A20.\r\n---------------------------------------------------------------------------\r\n\r\n4. Sec. 412--Detention of Immigrants\r\n\r\n During the Judiciary Committee's consideration of the \r\nPATRIOT Act in 2001, intense negotiations ensued on the issue \r\nof detaining non-citizens for extended periods of time. The \r\nresult was Section 412 of the PATRIOT Act, which set up a \r\nsystem by which the Attorney General could detain any alien he \r\ncertified as (1) deportable or inadmissible on grounds of \r\nterrorism, espionage, sabotage or sedition or (2) a danger to \r\nnational security, as long as he initiated removal proceedings \r\nor criminal charges within 7 days of detention. After \r\ninitiation of removal or charges, the certified alien could be \r\nheld for up to 6 months at a time. This is a power that we have \r\nbeen assured verbally has never been used either by DOJ or by \r\nthe Department of Homeland Security after it was transferred \r\nthere by the Homeland Security Act. We cannot be certain about \r\nthis, of course, because we have not received 6 out of the 7 \r\nreports required to detail how and whether Section 412 has been \r\nused.\r\n The authority to hold someone for up to 6 months at a time \r\non the word of the Attorney General is an extraordinary power. \r\nCongress measured this extraordinary power with the mandatory \r\nreporting requirement. However, Attorney General Ashcroft's \r\nDepartment of Justice was able to circumvent the spirit of the \r\nrequirement--to report on how many people were being held for \r\nlong periods without charge--by avoiding use of Section 412 in \r\nfavor of a rule the Attorney General published on September 20, \r\n2001, before the PATRIOT Act was enacted. Prior to September \r\n11, 2001, the INS was required to make charging determinations \r\nwithin 24 hours of arrest. The rule put in place on September \r\n20, 2001, extended that charging period to 48 hours or ``an \r\nadditional reasonable period of time'' in ``emergency or other \r\nextraordinary circumstances.'' It is under this rule that the \r\nextended detentions without charge outlined in the DOJ \r\nInspector General's report took place.\r\n Since it has been left not only unused but intentionally \r\ncircumvented, it is enticing to propose repeal of Section 412. \r\nInstead, Section 201 of the Civil Liberties Restoration Act \r\nleaves Section 412 of the PATRIOT Act in place. However, for \r\nthose detained who the AG chooses not to certify, DHS would be \r\nrequired to serve a Notice to Appear--the charging document \r\nthat begins an immigration proceeding--on every non-citizen \r\nwithin 48 hours of his arrest or detention. Any non-citizen \r\nheld for more than 48 hours would have to be brought before an \r\nimmigration judge within 72 hours of the arrest or detention. \r\nThe provision recognizes an exemption for non-citizens who are \r\n``certified'' by the Attorney General to have engaged in \r\nespionage or a terrorist offense, thus preserving PATRIOT \r\nSection 412.\r\n\r\n5. Sec. 505--Miscellaneous national security authorities \\60\\--\r\n ``National Security Letters''\r\n---------------------------------------------------------------------------\r\n\r\n \\60\\ Republican Senator Pat Roberts has authored a bill which seeks \r\nto extend the PATRIOT Act, and would give the FBI new powers to issue \r\nadministrative subpoenas in national security investigations. However, \r\nunlike 505 NSLs, these would be available for any type of record--it is \r\nnot limited to phone, internet, credit or financial records. Instead, \r\nit has the breadth of the infamous Section 215 request for records, and \r\nthe lack of judicial oversight of the National Security Letter. This \r\nnew combination will give the FBI whole new unchecked authority. In \r\nfact, as written, the ``records'' subject to seizure are not even \r\nlimited to businesses. There is nothing in the draft legislation that \r\nwould prevent the FBI to request a private individual to turn over \r\ndocuments in his or her possession. A copy of the bill is available at \r\n.\r\n---------------------------------------------------------------------------\r\n We are concerned with section 505 of the PATRIOT Act, which \r\ngrants law enforcement sweeping authority to issue national \r\nsecurity letters (NSLs). National security letters are a form \r\nof ``administrative subpoena'' for personal records which \r\ncompel the holder of the records to turn them over to the \r\ngovernment. NSLs grant the Justice Department access to \r\ntelephone and internet records, financial documents, and \r\nconsumer records without any sort of judicial oversight. It is \r\nimportant to note that subsequent legislation redefined \r\n``financial institutions'' subject to NSLs to include travel \r\nagencies, pawn brokers, casinos and car dealers, among other \r\nthings.\\61\\ In fact, it is hard to imagine what type of record \r\nwouldn't be covered under these new definitions.\r\n---------------------------------------------------------------------------\r\n \\61\\ 12 U.S.C.A. Sec. 3414(d) (2005).\r\n---------------------------------------------------------------------------\r\n It is speculated that DOJ has avoided using Section 215 \r\nbecause the NSL's represent a far more extensive section of the \r\nPATRIOT Act that is permanently at its disposal. Prior to the \r\nPATRIOT Act, NSLs could only be used to get records when there \r\nwas ``reason to believe'' someone was an agent of a foreign \r\npower. Now they are issued on the standard of relevancy.\\62\\\r\n---------------------------------------------------------------------------\r\n \\62\\ Administrative Subpoenas and National Security Letters in \r\nCriminal and Foreign Intelligence Investigations: Background and \r\nProposed Adjustments, CRS, Apr. 15, 2005, at 22.\r\n---------------------------------------------------------------------------\r\n The Justice Department has never accounted for their use. \r\nHowever, in response to a FOIA request, the DOJ released a six \r\npage list of NSLs delivered as of January 2003. The actual \r\nrecipients have been redacted, but it confirms that the Justice \r\nDepartment has used this new power hundreds of times since the \r\nPATRIOT Act was signed into law.\r\n The Justice Department argues that they have already had \r\nthe ability to summon records through (a) administrative \r\nsubpoenas and (b) grand jury subpoenas. And in recent hearings, \r\nthe director of the FBI actually requested more NSL authority. \r\nHowever, NSLs are far more intrusive than the Justice \r\nDepartment is representing: First, administrative subpoenas as \r\nlimited to specific categories of cases. Second, grand jury \r\nsubpoenas can be challenged by the judge overseeing the grand \r\njury whereas challenges to NSLs require a whole separate action \r\nin federal court, an action that is highly unlikely as \r\ndiscussed below.\r\n The Southern District of New York has already struck down \r\nthe telephone and toll NSL statute because it violates the \r\nFourth Amendment by completely barring the recipient's access \r\nto the courts. The court found that is ``improbable,'' given \r\nthe language of the NSL, that a reasonable person would think \r\nthey could not comply or would know that they have a right to \r\ncontest the NSL.\\63\\ The court also found the statute violated \r\nthe First Amendment by placing a prior restraint on speech \r\nthrough the non-disclosure provision.\\64\\\r\n---------------------------------------------------------------------------\r\n \\63\\ Doe v. Ashcroft, 334 F.Supp.2d 471, 501 (S.D.N.Y. 2004).\r\n \\64\\ Mr. Nadler offered an amendment to Section 505, including one \r\nto require regular reports on its use; one moderating the indefinite \r\ngag order on Section 505 requests; and one allowing a 505 recipient to \r\nchallenge the order in court. Ms. Waters offered an amendment to exempt \r\nmedical records from Section 505.\r\n---------------------------------------------------------------------------\r\n\r\n6. Sec. 802--Definition of domestic terrorism.\r\n\r\n Section 802 of the USA PATRIOT Act created a category of \r\ncrime called ``domestic terrorism,'' which makes criminal any \r\nactivities that ``involve acts dangerous to human life that are \r\na violation of the criminal laws of the United States'' when \r\nthe actor intends to ``influence the policy of a government by \r\nintimidation or coercion.'' Previously, there was no analogous \r\nprovision in statutory law. The overly broad nature of this \r\nprovision is reason for concern when examined in light of its \r\npotential application to and effect on peaceful protests. The \r\nbroad language of section 802 could potentially be used to \r\npunish participants of such peaceful demonstrations as a \r\nGreenpeace rally or the Million Man March, both of which fall \r\nsquarely within the First Amendment, but which could also be \r\nthe scene of an accidental injury and subsequent prosecution \r\nunder this provision.\r\n\r\n7. Sec. 805--Material support for terrorism\r\n\r\n Section 805 of the Act makes it a federal crime to provide \r\nmaterial support for terrorist activities. In general, \r\n``material support'' is defined as financial resources, expert \r\nadvice or assistance, assets, housing, personnel, training, or \r\ncommunications equipment.\\65\\ Section 805 added the terms \r\n``expert advice and assistance'' to this list. This provision \r\nraises numerous, serious concerns.\r\n---------------------------------------------------------------------------\r\n \\65\\ 18 U.S.C. Sec. 2339A.\r\n---------------------------------------------------------------------------\r\n The material support statute has repeatedly been found to \r\nbe unconstitutional. On December 3, 2003, the U.S. Court of \r\nAppeals for the Ninth Circuit ruled that the portions of the \r\nlaw prohibiting ``personnel'' and ``training'' from being \r\nprovided were void for vagueness.\\66\\ This is because the term \r\n``personnel'' could criminalize persons who merely write or \r\npublish pamphlets for a designated foreign terrorist \r\norganization; similarly, the term ``training'' could \r\ncriminalize a person who instructs a foreign terrorist \r\norganization on how to petition the United Nations.\r\n---------------------------------------------------------------------------\r\n \\66\\ Humanitarian Law Project v. Ashcrft, 352 F.3d 382 (9th Cir. \r\n2003).\r\n---------------------------------------------------------------------------\r\n The specific amendment added by Section 805 was enjoined in \r\na limited case by a lower court for similar reasons. In 2004, \r\nthe U.S. District Court for the Central District of California \r\nheld that the prohibition on providing ``expert advice and \r\nassistance'' was vague because it could encompass the \r\nplaintiff's provision of medical and legal advice to a \r\nterrorist organization.\\67\\ The court enjoined the government \r\nfrom enforcing this provision against the plaintiffs.\\68\\\r\n---------------------------------------------------------------------------\r\n \\67\\ Humanitarian Law Project v. Ashcroft, 309F.Supp.2d 1185 (C.D. \r\nCal. 2004).\r\n \\68\\ The court refused to find the prohibition to be overbroad and \r\nthus declined to enjoin its enforcement entirely.\r\n---------------------------------------------------------------------------\r\n In July of 2003, a federal District Court judge in New York \r\nthrew out charges of material support for terrorism against \r\nlawyer Lynne Stewart who was charged with funneling messages \r\nfrom her imprisoned client, Sheik Omar Abdel Rahman.\\69\\ She \r\nwas charged with violating the prohibition against providing \r\ncommunications equipment and personnel. Judge Koeltl ruled the \r\nlaw was unconstitutionally vague, especially the personnel \r\nprovision, such that Ms. Stewart could not have known what was \r\nprohibited. Furthermore, he held ``the government fails to \r\nexplain how a lawyer, acting as an agent of [an alleged foreign \r\nterrorist] client. * * * could avoid being subject to criminal \r\nprosecution as a `quasi-employee.' '' \\70\\\r\n---------------------------------------------------------------------------\r\n \\69\\ Opinion and order re: USA v. Sattar, al-Sirri, Steward and \r\nYousry (J.G. Koeltl, 02CR00395).\r\n \\70\\ Id, at p. 18.\r\n---------------------------------------------------------------------------\r\n Finally, in June 2004, a federal jury in Idaho acquitted \r\nUniversity of Idaho graduate student Sami Al-Hussayen of all \r\ncharges of material support. The government charged Al-\r\nHussayen, a citizen of Saudi Arabia, of providing material \r\nsupport for his operating and maintaining Internet sites for \r\nthe Islamic Assembly of North America and for funneling \r\ndonations to the group. Importantly, this group was not on the \r\nlist of terrorist groups, and the links Al-Hyssayen posted were \r\nalso available on the government's own website. Significantly, \r\nin each instance, the courts found COMPLETELY LEGAL ACTIVITIES \r\nwould violate Section 805.\r\n\r\n C. GENERAL CONCERNS WITH PATRIOT ACT REAUTHORIZATION\r\n\r\n Beyond the specific concerns outlined above, we are also \r\nconcerned with the Committee's general failure to provide a \r\ngeneral sunset provision, or to provide for any sort of \r\nadditional general oversight power by the Congress with respect \r\nto the Justice Department regarding the PATRIOT Act.\r\n\r\n1. Lack of a General Sunset\r\n\r\n If we have learned one thing over the last four years, it \r\nis that the Justice Department feels it is above accountability \r\nto this Congress in relation to the so called ``war on \r\nterror,'' and that we, its Committee of jurisdiction, will not \r\nget answers to our questions unless the Justice Department is \r\ncompelled to come before us and justify its use of the more \r\ndangerous provisions of the PATRIOT Act. However, our \r\nreasonable attempts to retain our oversight through periodic \r\nsunsets were thwarted completely on party-line votes:\r\n Mr. Scott and Mr. Nadler offered second \r\n degree amendments that would have put a four year and \r\n six year sunset on Section 206, the John Doe Roving \r\n Wiretap, and Section 215, Intelligence orders for any \r\n tangible thing, respectively They were rejected in \r\n favor of a ten-year amendment that is so far in the \r\n future, its review will be almost meaningless.\r\n Mr. Schiff offered an amendment to sunset \r\n the Lone Wolf provision, which was originally passed in \r\n the Intelligence Reform bill only 8 months ago. We \r\n believe making this provision permanent so soon and \r\n without any information on its use is unwise and we \r\n therefore supported Mr. Schiff's proposal to review \r\n this broad new provision in three years. This too was \r\n rejected in favor of permanency.\r\n Mr. Nadler and Ms. Lofgren, in the spirit of \r\n comity, offered an amendment to set all of the expiring \r\n provisions on a ten year sunset cycle. It was flatly \r\n rejected by the majority.\r\n Considering that many of the Majority's members spoke in \r\nfavor of sunsets throughout our 12 hearings, we were \r\ndisappointed that they were swayed into objecting to even the \r\nmost reasonable of amendments. That all of these new powers \r\nhave been made largely permanent contributed to our collective \r\ndecision not to support this bill.\r\n\r\n2. Lack of General Oversight\r\n\r\n In addition, there is a need for additional congressional \r\noversight of the PATRIOT Act. There are numerous reporting \r\nrequirements under the Electronic Communications Privacy Act, \r\nthe Foreign Intelligence Surveillance Act and National Security \r\nLetters. However, many of those are classified, and therefore \r\ncannot even be publicly discussed. These classified accounts \r\neffectively protect the Administration from having to answer \r\nfor the use of the authorities in any way that they can be held \r\naccountable for--and they have been exploited by the Majority \r\nto at once claim that we have oversight capabilities, yet no \r\nabuses are known.\r\n Moreover, the Administration claims that any public \r\naccounting would put our nation at risk of further terror \r\nattacks. However, we have heard no logical arguments about why \r\nsimply reporting the number of times an authority has been used \r\nputs anyone at risk. Knowing that John Doe Roving Wiretaps have \r\nbeen used 49 times, for example, does nothing to further \r\nterrorist causes. Knowing that nearly 90 percent of ``sneak and \r\npeek'' warrants were used in non-terrorist cases does not put \r\nus at risk of another attack.\r\n Besides, this argument is completely undercut by the \r\nAdministration's selective declassification of numbers and \r\nexamples when it is politically convenient for it to do so. We \r\nhave asked for numbers and examples for years and have been \r\nrepeatedly told that the information was classified. Then, in \r\nApril of this year, when it became clear that many members of \r\nthis House and in the Senate would not be acquiesced by hollow \r\nreassurance, numbers and anecdotes suddenly became available.\r\n However, anecdotes are not oversight. Non-terror examples \r\nof how a provision has been used has no bearing on whether they \r\nshould be renewed, and as this bill has it, renewed as-is and \r\nwithout any new protections. We are sure the Justice Department \r\ncan find one or two feel-good stories for each provision of the \r\nU.S. code, but that is not the point. Oversight is about \r\ndeciding whether, on the whole and after examining the totality \r\nof the circumstances, a provision's usefulness outweighs the \r\nprivacy and other rights it infringes upon. Regrettably, the \r\nJustice Department has not given us enough information to make \r\nthat determination.\r\n In addition, we find it hard to believe that the number of \r\ntimes a section of the PATRIOT Act has been used suddenly \r\nbecame no longer a security threat earlier this year without \r\nany change in the law or our standing in the fight against \r\nterror. Clearly, these provisions were wrongly classified from \r\nthe beginning if they could be released for political reasons \r\nin the Administration's efforts to reauthorize the PATRIOT Act. \r\nThis sort of bad faith on the Administration's part clearly \r\ncalls for statutorily mandated reporting requirements.\r\n H.R. 3199 also does nothing to address the myriad of \r\nconcerns related to the unwarranted amount of secrecy that \r\nsurrounds the original PATRIOT Act. The PATRIOT Act keeps \r\nsecret, even from Congress, how many of the powers are being \r\nused, prohibits recipients of search orders from disclosing \r\nthey even received such an order, including to their attorney, \r\nand allows the government to secretly search people's homes and \r\nseize their property. The Minority attempted to remedy many of \r\nthese egregious secrecy provisions, but was thwarted in all of \r\nits attempts to provide reasonable measures to allow for more \r\nlight to be shed on the government's actions.\\71\\\r\n---------------------------------------------------------------------------\r\n \\71\\ For example, Mr. Berman offered an amendment that would have \r\nrequired reporting on data-mining practices, which to date, this \r\nCongress only finds out about through news reports after personal \r\ninformation is leaked or otherwise abused. He withdrew that amendment \r\nafter it became clear it would not pass. Mr. Conyers offered an \r\namendment that would have required reporting on the disclosure of \r\nelectronic communications, a reporting requirement that was reporting \r\non the disclosure of electronic communications, included in the \r\nJudiciary passed bill in 2001 and supported unanimously, but was later \r\nstripped by the Rules Committee without explanation. Mr. Conyers' \r\namendment failed. Similarly, Mr. Schiff offered an amendment that would \r\nhave required public reporting on the use of National Security Letters \r\nand the Sneak and Peek authority, two provisions that the Justice \r\nDepartment has been secretive about. That amendment failed on party \r\nlines as well.\r\n---------------------------------------------------------------------------\r\n The PATRIOT Act allows the government to keep secret, even \r\nfrom Congress, how many of these authorities are being used. \r\nWhile there are reporting requirements the Department of \r\nJustice must adhere to, as discussed in more detail above, they \r\nhave on numerous occasions either refused to provide they \r\nnecessary information or have given the Congress only useless \r\ninformation. For example, it was only after a FOIA request by \r\nthe ACLU was upheld that the DOJ released any information about \r\nits use of Section 505 National Security Letters. However, what \r\nthe DOJ released was a six-page document with every single line \r\nblacked out. Thus, while we know the DOJ is using this \r\nauthority often, that is all we know, and further attempts to \r\ngain information have been thwarted. Similar refusals to \r\nprovide even descriptive statistics on the use of many \r\nprovisions are, unfortunately, quite common.\r\n As an additional safeguard, Ms. Lofgren introduced an \r\namendment which would ensure that a person's right to challenge \r\ntheir detention is not undermined by any Act of Congress. Her \r\namendment specified that no Act of Congress passed since 9\/11, \r\nincluding the PATRIOT Act, shall be construed to suspend the \r\nright to apply for a writ of habeas corpus. It would simply \r\nhave protected a right that was deemed so important that is was \r\nincluded in the U.S. Constitution. However, after initially \r\npassing on a voice vote, the Majority moved to reconsider, and \r\nthe amendment was overturned on a straight party-line vote.\r\n\r\nIV. The Legislation Does Nothing To Address the Many Unilateral Abuses \r\n of The Administration in the War Against Terror\r\n\r\n Since we were given the ability to review the PATRIOT Act, \r\nwe feel it also provided an opportunity to review all of the \r\nU.S.'s actions in the broader War on Terror as it is impossible \r\nto discuss the PATRIOT Act without referencing other \r\nadministrative actions that have occurred since 9\/11.\r\n Unfortunately, the majority flatly rejected our attempts to \r\nreview other actions by the United States government, including \r\nunilateral actions that were taken so as to circumvent even \r\nsmall protections that existed in the USA PATRIOT Act. It is \r\nclear that numerous abuses have occurred and we fear the \r\nmajority's unwillingness to address them will only lead to \r\nfurther abuses in the years to come.\r\n\r\n A. MATERIAL WITNESS STATUTE\r\n\r\n An undisclosed number of the individuals detained after \r\nSeptember 11, 2001, have been arrested on material witness \r\nwarrants pursuant to the Department's authority under 18 U.S.C. \r\nSec. 3144. Although the Department refuses to reveal the exact \r\nnumber of individuals who have been held as such witnesses, a \r\nNovember 2002 Washington Post article identified 44 material \r\nwitnesses and asserts that almost half of them never testified \r\nbefore a grand jury.\\72\\ In its May 13 letter to the Committee, \r\nthe Department put the number of material witnesses detained as \r\nof January 2003 in conjunction with September 11 to be fewer \r\nthan 50.\\73\\ The Justice Department has subsequently refused to \r\nupdate that number.\r\n---------------------------------------------------------------------------\r\n \\72\\Steven Fainaru & Margot Williams, Material Witness Law has Many \r\nin Limbo; Nearly Half Held in War on Terror Haven't Testified, Wash \r\nPost, Nov. 24, 2002, at A1.\r\n \\73\\ May 13 Letter at 50.\r\n---------------------------------------------------------------------------\r\n The Department has refused to provide any further \r\ninformation on those being held as material witnesses, claiming \r\nthat it cannot do so because of the grand jury secrecy rules \r\nand sealing orders that have been entered by the courts, and \r\nhas refused to release the orders themselves. Press reports, \r\nhowever, indicate that many individuals have been held as \r\nmaterial witnesses for significant periods of time prior to \r\ntestifying before grand juries, if they testified at all.\r\n This implies the government is using the material witness \r\nstatute not to secure testimony, but to secure the detention of \r\nindividuals it cannot connect with terrorism or other crimes. \r\nIt appears the department is holding detainees despite the fact \r\nit could secure their testimony by deposition, which the \r\nstatute provides for.\\74\\ It also appears from news articles \r\nthat at least two individuals, Mohammed El-Yacoubi and \r\nAbdulmuhssin El-Yacoubi, were held as material witnesses in \r\nconnection with a grand jury investigation in which they were \r\nthe targets of the investigation.\\75\\\r\n---------------------------------------------------------------------------\r\n \\74\\ See, e.g., United States v. Awadallah, 2002 U.S. Dist. LEXIS \r\n1430, 01 CR 1026 (SAS), at *96-97 (S.D.N.Y. Jan. 31, 2002).\r\n \\75\\ Jerry Seper, Israel Bars Entry to Men INS Cleared, Wash. \r\nTimes, Apr. 1, 2002; Chuck Raasch, Virginia City is Newest Front in \r\nTerror War, Indianapolis Star, Mar. 31, 2002.\r\n---------------------------------------------------------------------------\r\n The Inspector General has agree to investigate how the \r\nstatute was wrongly applied to Brandon Mayfield, arrested for \r\nbombing a train in Madrid, and what role his Muslim faith \r\nplayed in the FBI's decision to hold him as a material witness.\r\n The material witness statue was scheduled to be part of a \r\nbipartisan oversight plan crafted in September of 2003. After \r\nseveral months of effort, committee staff were unable to \r\nconvince their Republican counterparts that action was \r\nnecessary. While we had drafted an extensive bipartisan letter \r\ninquiring about all the policies and statistics about the use \r\nof this statute, just before delivery the majority refused to \r\nsign the letter and claimed it was no longer concerned about \r\nthe statute because the warrants were signed by a judge and \r\ntherefore couldn't possibly be abused.\r\n\r\n B. TORTURE\r\n\r\n We now know that the Justice Department led the effort to \r\nlegally excuse acts of torture. The abuse of Iraqi and other \r\nprisoners was not just the work of a few rogue soldiers, but \r\nthe obvious consequence of the Justice Department declaring \r\nthat the President and his military are accountable to no one. \r\nA number of legal opinions generated by the Justice Department \r\nwere either leaked or formally released by the President last \r\nyear. They include:\r\n January 22, 2002 Department of Justice \r\n memorandum regarding ``Application of Treaties and Laws \r\n to al Qaeda and Taliban Detainees''\r\n February 1, 2002 Attorney General Letter to \r\n President regarding status of Taliban detainees;\r\n February 7, 2002 Department of Justice \r\n memorandum regarding ``Status of Taliban forces Under \r\n Article 4 of the Third Geneva Convention of 1949''\r\n February 26, 2002 Department of Justice \r\n memorandum regarding ``Potential Legal Constraints \r\n applicable to Interrogations of Persons Captured by \r\n U.S. Armed Forces in Afghanistan''\r\n August 1, 2002 Department of Justice letter \r\n regarding application of Convention Against Torture and \r\n Rome Statute on the International Criminal Court\r\n August 1, 2002 Department of Justice \r\n memorandum regarding ``Standards of Conduct for \r\n Interrogation under 18 U.S.C. Sec. Sec. 2340-2340A.''\r\n In tandem, these documents argued that (1) the Geneva \r\nConventions and other international laws banning torture did \r\nnot apply to our detainees, (2) if they did, they could be \r\nconstrued so narrowly that events such as those at Abu Ghraib \r\nare not legally ``torture,'' and (3) even if those acts could \r\nbe defined as ``torture,'' the Administration and its military \r\nare not liable under the President's Commander-in-chief \r\nauthority and other defenses. On December 30, 2004, the Justice \r\nDepartment released a new memo that improved upon its previous \r\nrulings: it redefined what ``torture'' was under the law to no \r\nlonger require excruciating and agonizing pain equivalent to \r\norgan failure or death, and reversed its previous position that \r\nthose committing torture could be shielded from criminal \r\nliability by good intentions.\\76\\ It did not however, \r\nexplicitly revoke the previous memos' holding that the \r\nPresident's Commander-in-chief authority was not bound by any \r\nAmerican or international law.\r\n---------------------------------------------------------------------------\r\n \\76\\ The new memo is available at http:\/\/www.usdoj.gov\/olc\/\r\ndagmemo.pdf.\r\n---------------------------------------------------------------------------\r\n It is within the Justice Department's discretion whether to \r\nprosecute contractors who are implicated in the scandal, and to \r\ndate, has indicted one person for criminal assault for killing \r\na detainee within his custody.\\77\\ And while ``the Justice \r\nDepartment has received a number of criminal referrals \r\ninvolving allegations of prisoner mistreatment by CIA \r\noperatives,'' it has not brought any charges.\\78\\ Finally, the \r\nJustice Department does have the authority to charge members of \r\nthe military for their criminal acts over seas if either (a) \r\nthey are no longer in the military, or (b) committed the acts \r\nwith non-military accomplices.\\79\\ This authority may be \r\nappropriate to exercise in the instances where the military is \r\nrefusing to charge its members even in contradiction with the \r\nrecommendations of its own investigators. For example, 17 \r\nsoldiers were recently found to be responsible for the death of \r\nthree detainees, yet their commanders will not press charges; \r\nonly one was discharged and one was given a letter of \r\nreprimand.\\80\\\r\n---------------------------------------------------------------------------\r\n \\77\\ U.S. v. Passaro, No. 94-CR-211-1, (E.D.N.C.), indictment \r\navailable at http:\/\/news.findlaw.com\/cnn\/doc\/torture\/\r\nuspassargo61704ind.html.\r\n \\78\\ Richard B. Schmitt, U.S. May Still Charge ``Enemy Combatant, \r\nGonzales Says, L.A. Times, Mar. 8, 2005.\r\n \\79\\ Military Extraterritorial Jurisdiction Act, Pub. L. No. 106-\r\n523 (Nov. 22, 2000).\r\n \\80\\ Douglas, Jehl, Pentagon Will Not Try 17 G.I.'s Implicated in \r\nPrisoners' Deaths, NY Times, Mar. 26, 2005.\r\n---------------------------------------------------------------------------\r\n\r\n C. RENDITION\r\n\r\n Maher Arar, was detained by the INS during a layover at JFK \r\nairport in New York. After authorities were unable to obtain \r\nany intelligence from Arar or establish a connection between \r\nhim and Al Qaeda, Deputy Attorney General Larry Thompson \r\nordered him deported to Syria--despite his professed Canadian \r\ncitizenship and his request to return to Canada. Arar was \r\njailed and tortured in Syria for ten months before his release \r\nin October 2003. No one was ever able to connect him in any way \r\nto terrorism or to Al Qaeda.\r\n Even if Arar was correctly labeled a threat to national \r\nsecurity, he was free to request deportation to Canada, and was \r\nentitled to be sent somewhere he would not be harmed.\\81\\ The \r\nAttorney General's Office argues that removing Arar to Canada \r\nwould have been prejudicial to national security, and that it \r\nwas justified in returning Arar to Syria under the prevailing \r\nstatute.\\82\\ However, even if the Attorney General had found \r\nreason to deny Arar deportation to Canada, he might have sent \r\nhim to any country in the world. The law provides that if all \r\nother statutorily defined options are inappropriate, the \r\nJustice Department may send an alien to any country willing to \r\nreceive him.\\83\\ There may have been a tactical advantage in \r\nturning Arar over to the Syrian government, but there was no \r\nlegal requirement to do so.\r\n---------------------------------------------------------------------------\r\n \\81\\ Current law allows for an expedited removal of foreign \r\nnationals on ``security and related grounds,'' for (A) generally \r\nsubversive activity, (B) terrorist activity or (C) generally \r\nthreatening foreign policy (8 U.S.C. Sec. 1182(a)(3)). On a finding of \r\none of the above three grounds by an immigration court, the Attorney \r\nGeneral reviews the decision. If he approves and finds that \r\n``disclosure of the information would be prejudicial to the public \r\ninterest, safety or security,'' he can order immediate removal without \r\nhearing or inquiry (8 U.S.C. Sec. 1225(c)). The Attorney General is \r\nempowered to disregard such a request only in narrowly defined, \r\ntechnical circumstances. 8 U.S.C. Sec. 1231(b)(2)(C) provides that the \r\nAttorney General may deny an alien deportation to a designated country \r\nif he finds: (i) that the alien failed to designate a country promptly, \r\n(ii) that the designated country fails to respond to a deportation \r\nrequest within thirty days, (iii) that the designated country is not \r\nwilling to accept the alien, or, (iv) that removal to the designated \r\ncountry is prejudicial to the United States.\r\n \\82\\ 8 U.S.C. Sec. 1231(d)(2)(D) (If the Attorney General does not \r\ndeport an alien to the country of his choice, the alien is to be \r\nreturned to a nation is which he is a national or citizen, given the \r\nnation accepts).\r\n \\83\\ 8 U.S.C. Sec. 1231(b)(2)(E)(vii).\r\n---------------------------------------------------------------------------\r\n Deportation to Syria when imprisonment and torture are \r\nimminent stands in violation of both U.S. and international \r\nlaw. The International Convention Against Torture prohibits the \r\nremoval of a person to another state ``where there are \r\nsubstantial grounds for believing that he would be in danger of \r\nbeing subjected to torture.'' \\84\\ Federal law affirms the \r\nconvention and condemns extradition to a country in which \r\n``there are substantial grounds for believing the person would \r\nbe in danger of being subjected to torture.'' \\85\\ The State \r\nDepartment recognizes the Syrian government's use of torture \r\ntactics--including electrical shock, removal of fingernails, \r\nand objects forced into the rectum.\\86\\\r\n---------------------------------------------------------------------------\r\n \\84\\ International Convention Against Torture, and Other Cruel, \r\nInhuman, or Degrading Treatment or Punishment, art. 3.\r\n \\85\\ 8 C.F.R. Sec. 235.8. See also, Pub. L. 105-277, Div. G, Title \r\nXXII, Section 2242. There are exceptions to the policy (8 U.S.C. \r\nSec. 1231(b)(3)(B)) but the Justice Department would have had to \r\ndemonstrate reasonable grounds to believe Arar is a credible danger to \r\nnational security.\r\n \\86\\ County Reports on Human Rights Practices, 2002, available at: \r\nhttp:\/\/www.stage.gov.\r\n---------------------------------------------------------------------------\r\n Arar's case is not unique. Estimates puts the number of \r\nrenditions at over a hundred, although their secrecy prevents \r\nus from knowing the extent of their use. The Administration \r\nkeeps saying it does not use torture and does not render \r\nsuspects, yet lay employees admit that it was a common place \r\nactivity. Until three months ago, Michael Scheuer was a senior \r\nintelligence analyst for the CIA; he has now come forward to \r\nexplain that,\r\n\r\n They don't have the same legal system we have. But we \r\n know that going into it * * * And so the idea that \r\n we're gonna suddenly throw our hands up like Claude \r\n Raines in ``Casablanca'' and say, ``I'm shocked that \r\n justice in Egypt isn't like it is in Milwaukee,'' \r\n there's a certain disingenuousness to that.\\87\\\r\n\r\n \\87\\ CIA Flying Suspects to Torture?, CBSNews.com, Mar. 6, 2005.\r\n---------------------------------------------------------------------------\r\n A former Justice Department lawyer even admits that, ``The \r\nConvention only applies when you know a suspect is more likely \r\nthan not to be tortured, but what if you kind of know? That's \r\nnot enough. So there are ways to get around it.'' \\88\\ In fact, \r\nthe Convention says nothing about a legal standard of ``more \r\nlikely than not''--the correct standard is ``substantial \r\ngrounds.'' The ``more likely than not'' standard is a highly \r\nconstrained interpretation of the Convention that obviously \r\nfails to honor its spirit (and appears intended to do just \r\nthat). And a recently retired FBI agent has said, ``They loved \r\nthat these guys would just disappear off the books, and never \r\nbe heard of again * * * They were proud of it.'' \\89\\\r\n---------------------------------------------------------------------------\r\n \\88\\ Jane Mayer, Outsourcing Torture, The New Yorker, Feb. 8, 2005.\r\n \\89\\ Id.\r\n---------------------------------------------------------------------------\r\n\r\n D. ENEMY COMBATANTS\r\n\r\n The Justice Department is authorized to give legal advice \r\nin response to a request from the President, federal agencies, \r\nand military departments.\\90\\ Under this authority, the Justice \r\nDepartment laid the legal grounds for the indefinite and \r\nillegal detention of enemy combatants by advising that al Qaeda \r\nand Taliban forces were not entitled to protection under the \r\nGeneva Conventions. The Department also determined that \r\nindividuals arrested in the United States both citizens and \r\nnon-citizens, were not entitled to the protection of the sixth \r\namendment and if certified as enemy combatants, could be held \r\nby the military incommunicado without access to lawyers or the \r\ncourt for so long as the government deemed it necessary. \r\nInstead of meeting the procedures required under the \r\nConstitution and our international agreements, the \r\nAdministration has constructed a farce of process and fairness.\r\n---------------------------------------------------------------------------\r\n \\90\\ 28 U.S.C. Sec. Sec. 511-513 (2004).\r\n---------------------------------------------------------------------------\r\n Most importantly, the Office of Legal Counsel has advised \r\nthat these detainees fall somewhere between civilians and \r\nsoldiers and therefore are devoid of the protections that apply \r\nto either.\\91\\ This is in clear conflict with 50 years of legal \r\nprecedent that has held that a person ``cannot fall outside of \r\nthe law.'' \\92\\ Instead of simply holding individualized \r\nhearings about whether each detainee is a prisoner of war or \r\njust a ``protected person''--as required by the Geneva \r\nConventions--and then providing the appropriate judicial \r\nprocedures, the Defense Department now holds newly imagined \r\nCombatant Status Review Tribunals (CSRT) and Annual Review \r\nBoard procedures that don't meet the international obligations \r\nfor the treatment of either group.\\93\\\r\n---------------------------------------------------------------------------\r\n \\91\\ See supra, discussion of memo advising the Administration on \r\nthe laws of war.\r\n \\92\\ International Committee of the Red Cross, ``Commentary: IV \r\nGeneva Convention Relative to the Protection of Civilian Person in Time \r\nof War,'' (Geneva, 1958).\r\n \\93\\ See letter from Congressman John Conyers, Jr. to The Honorable \r\nGordon R. England, regarding the legality of detention of Guantanamo, \r\nNovember 9, 2004, on file with the House Judiciary Committee Democratic \r\nStaff.\r\n---------------------------------------------------------------------------\r\n A federal court has recently ruled that at least one of \r\nthese procedures--the CSRT--violates the detainees' Fifth \r\nAmendment rights to due process.\\94\\ The court found \r\nparticularly troubling that the detainee Another federal court \r\nhas found that the military commissions are also in violation \r\nof the law, because they do not meet Geneva Convention \r\nrequirements.\\95\\ It held that until the detainees are \r\nadjudicated either POW's or protected persons, they must be \r\nafforded the rights under the Afraid that Administration will \r\ndeport more of these detainees to countries where they may be \r\ntortured, attorneys have secured a preliminary injunction \r\nkeeping the government from removing Guantanamo detainees \r\nwithout giving the detainee's attorney at least 30-day notice \r\nof its intent to release or transfer the detainee.\\96\\ This is \r\nin light of the fact that 200 detainees have already been \r\ntransferred overseas, 65 of whom on the condition that they be \r\nfurther detained by the country of receipt.\\97\\\r\n---------------------------------------------------------------------------\r\n \\96\\ Abdah v. Bush, 2005, WL 711814 (D.D.C. Mar. 29, 2005).\r\n \\97\\ Abdah v. Bush, 2005, WL 589812 (D.D.C. Mar. 12, 2005).\r\n \\94\\ In re Guantanamo Cases, 355 F.Supp.2d 443 (D.D.C.) (finding \r\nthat the deck was so stacked against the detainees that the hearings \r\nwere near meaningless).\r\n \\95\\ Hamdan v. Rumsfeld, 355 F.Supp.2d 152 (D.D.C. 2004).\r\n---------------------------------------------------------------------------\r\n\r\n E. SELECTIVE ENFORCEMENT OF IMMIGRATION PROVISIONS\/RACIAL PROFILING\r\n\r\n The Justice Department's racial profiling guidelines exempt \r\nterrorism investigations from the general ban on the use of \r\nthese tactics. While the Department widely used racial \r\nprofiling--the interview program of middle eastern men who came \r\ninto the country before 9\/11, the interview of 50,000 Iraqis, \r\nthe FBIs counting of mosques and Muslims, and the registration \r\nof over 83,000 middle eastern men under NSEERS--we have \r\nreceived no useful intelligence information and have prosecuted \r\nonly a handful of people for terrorism related charges. In \r\nfact, the GAO found that the information gathered from such \r\nprograms sits around in federal databases without any specific \r\nplans for use.\\98\\ This has led to former Attorney General John \r\nAshcroft to admit that racial profiling doesn't work. During a \r\npress conference, he admitted that al Qaeda is using Europeans, \r\nAfricans and South Asians. In fact, they recruit from ``any \r\nnationality inside target countries.'' However, the Department \r\ncontinues to profile and selectively enforce laws on the basis \r\nof race, nationality and religion.\r\n---------------------------------------------------------------------------\r\n \\98\\ Justice Department's Project to Interview Aliens After \r\nSeptember 11, 2001, GAO, GAO-03-459, April 2003 at 6.\r\n---------------------------------------------------------------------------\r\n\r\n F. EXCESSIVE COLLECTION OF PERSONAL DATA\r\n\r\n Since the passage of the PATRIOT Act, the press has \r\nreported massive FBI collections of personal information about \r\nindividuals suspected of no wrongdoing. It is unclear what \r\nprecise authority the FBI relied upon to collect this data, or \r\nthe extent to which investigative powers granted by the PATRIOT \r\nAct were used by the bureau to amass this information.\r\n For example, in December 2003, the press reported that \r\n``[t]he FBI has been checking hotel and airline records against \r\nterrorist watch lists in advance of a New Year's Eve \r\ncelebration expected to draw 300,000 to Las Vegas.'' \\99\\ \r\nThough FBI conceded the personal records had not borne out a \r\nparticular threat, a FBI spokesman was quoted as saying, \r\n``[t]he information we're getting, the names, are being run by \r\nall the different watch lists[.] People can take comfort that \r\nanything and everything that can be done is being done.'' \\100\\ \r\nAn article in the Las Vegas Review-Journal suggests that the \r\ninformation may have been collected pursuant to Section 505 of \r\nthe PATRIOT Act: ``[c]asino operators said they turned over the \r\nnames and other guest information on an estimated 270,000 \r\nvisitors after a meeting with FBI officials and after receiving \r\nnational security letters requiring them to yield the \r\ninformation.''\\101\\\r\n---------------------------------------------------------------------------\r\n \\99\\ Ken Ritter, Associated Press, In Vegas Matching Airline, Hotel \r\nRecords with Terror Lists, AP Dec. 31, 2003.\r\n \\100\\ Id.\r\n \\101\\ Ron Smith, Sources: FBI Gathered Visitor Information Only In \r\nLas Vegas, Las Vegas Review-Journal, Jan. 7. 2004, at 1A.\r\n---------------------------------------------------------------------------\r\n Likewise, last spring the New York Times reported that \r\n``[i]n the days after the Sept. 11 terrorist attacks in 2001, \r\nthe nation's largest airlines, including American, United and \r\nNorthwest, turned over millions of passenger records to the \r\nFederal Bureau of Investigation[.]'' \\102\\ An FBI official told \r\nthe newspaper that the agency requested the data ``under the \r\nbureau's general legal authority to investigate crimes and that \r\nthe requests were accompanied by subpoena, not because that was \r\nrequired by law or because the bureau expected resistance from \r\nthe airlines, but as a `course of business' to ensure that all \r\nproper procedures were followed.'' \\103\\ The Electronic Privacy \r\nInformation Center later learned through its Freedom of \r\nInformation Act litigation that the FBI in fact collected 257.5 \r\nmillion passenger records, and has since incorporated them into \r\nits permanent investigative databases.\\104\\ It is unclear \r\nwhether authorities granted by the PATRIOT Act enabled the FBI \r\nto collect this vast amount of information, and if so, which \r\nprovisions.\r\n---------------------------------------------------------------------------\r\n \\102\\ John Schwartz and Micheline Maynard, Airlines Gave FBI \r\nMillion of Records on Travelers After 9\/11, NY Times, May 1, 2004 at \r\nA10.\r\n \\103\\ Id.\r\n \\104\\ See Hardy Declaration; Leslie Miller, FBI Keeping Records on \r\nPre-9\/11 Travelers, AP, Jan. 15, 2005.\r\n---------------------------------------------------------------------------\r\n\r\n G. UNAUTHORIZED DETENTION OF ALIENS\r\n\r\n Following the terrorist attacks in New York City and \r\nWashington, D.C., the Attorney General directed the FBI and \r\nother members of federal law enforcement to utilize ``every \r\navailable law enforcement tool'' to arrest persons who \r\n``participate in, or lend support to, terrorist activities.'' \r\n\\105\\ But in so doing, the FBI took advantage of our nation's \r\nimmigration laws by detaining aliens for extended periods of \r\ntime without any real authority and committing abuses to those \r\nsame aliens during their detainment.\r\n---------------------------------------------------------------------------\r\n \\105\\ Memorandum from Attorney General John Ashcroft to United \r\nStates Attorneys entitled ``Anti-Terrorism Plan'' (September 17, 2001).\r\n---------------------------------------------------------------------------\r\n The ``hold until cleared'' policy that Department of \r\nJustice (``DOJ'') officials communicated to the Immigration and \r\nNaturalization Services (``INS'') and FBI applied to all of the \r\n``September 11 detainees'' who the FBI categorized as either \r\nbeing ``of interest,'' ``of high interest,'' or ``of \r\nundetermined interest.'' In a September 27, 2001 e-mail, DOJ \r\nSenior Counsel observed that while those individuals found to \r\nbe legally present in the United States may only be held so \r\nlong as law enforcement was pursuing criminal charges or a \r\nmaterial witness warrant against them, any others ``believed to \r\nbe involved in the attacks * * * may be detained, at least \r\ntemporarily, on immigration charges.'' \\106\\ In all, more than \r\n1,200 citizens and aliens nationwide were detained pursuant to \r\nthis policy within two months of the attacks, and that number \r\nmay even be substantially higher given that a senior official \r\nin the Department's Office of Public Affairs stopped reporting \r\nthe cumulative totals based on the belief that the ``statistics \r\nwere becoming too confusing.'' \\107\\\r\n---------------------------------------------------------------------------\r\n \\106\\ Office of the Inspector General, Department of Justice, the \r\nSeptember 11 Detainees: A Review of the Treatment of Aliens Held on \r\nImmigration Charges in Connection with the Investigation of the \r\nSeptember 11, Attacks 34-39 (April 2003) (emphasis added).\r\n \\107\\ Id. at 1.\r\n---------------------------------------------------------------------------\r\n What's more, during this detainment period, these \r\nindividuals were not informed of the charges against them for \r\nextended periods of time; were not permitted contact with \r\nattorneys, their families and embassy officials; remained in \r\ndetention despite having no involvement in terrorism; and were \r\nphysically or verbally abused or mistreated in other ways. This \r\nincluded officers who ``slammed detainees against the wall, \r\ntwisted their arms and hands in painful ways, stepped on their \r\nleg restraint chains, and punished them by keeping them \r\nrestrained for long periods of time,'' \\108\\ all of which was \r\ncaptured on videotape. Despite being seen on videotape, these \r\nofficers denied any involvement upon Inspector General \r\ninquiry.\\109\\ Finally, even when officials permitted detainees \r\nto meet with counsel, the Office of Inspector General found \r\nthat several officers illegally recorded these meetings in \r\nclear violation of the Fourth and Sixth Amendments.\\110\\\r\n---------------------------------------------------------------------------\r\n \\108\\ Office of Inspector General, U.S. Dep't. of Justice, \r\nSupplemental Report on September 11 Detainees' Allegations of Abuse at \r\nthe Metropolitan Detention Center in Brooklyn New York 46 (Dec. 2003).\r\n \\109\\ Id. at 46-47.\r\n \\110\\ Id. at 31-33.\r\n---------------------------------------------------------------------------\r\n\r\n H. CLOSED IMMIGRATION TRIALS\r\n\r\n Ten days after the 9\/11 attack on the United States, the \r\nAttorney General implemented new procedures for handling \r\nimmigration cases involving aliens linked to the government's \r\nongoing investigation of the September 11th attacks and other \r\nterrorist activity against the United States. These immigration \r\nmatters were identified as ``Special Interest Cases.'' In \r\nconjunction with that effort, the Chief Immigration Judge \r\ninstructed immigration judges and court administrators to close \r\nto the public hearings involving Special Interest Cases, and to \r\nbar access to the related administrative record and docket \r\ninformation. These instructions were justified as part of the \r\neffort to protect national security and public safety by \r\npreventing sophisticated terrorist organizations like Al Qaeda \r\nfrom learning about the government's ongoing terrorism \r\ninvestigation.\r\n On May 28, 2002, the Department published an interim \r\nregulation that provided a mechanism for the government to ask \r\nan immigration judge to place a protective order over \r\ninformation that, while not classified, was sensitive and could \r\ndamage law enforcement or national security interests if \r\nreleased beyond the parties to a specific immigration \r\nproceeding. If a protective order is granted, the alien, \r\ncounsel, and anyone else approved by the government, are given \r\nfull access to the protected information, but they are not \r\npermitted to disclose the information to others. The alien may \r\nchallenge the admissibility of the evidence and may appeal the \r\ngranting of the protective order as part of an appeal to the \r\nBoard from the immigration judge's decision. The public may \r\nattend all portions of the alien's hearing, except those parts \r\nwhere the protected information is discussed. A violation of \r\nthe protective order could render the alien ineligible for \r\ndiscretionary relief and could subject the alien's attorney to \r\ndisciplinary procedures.\r\n\r\n I. THE ATTORNEY GENERAL'S GUIDELINES ON DOMESTIC SURVEILLANCE\r\n\r\n On May 30, 2002, Attorney General Ashcroft announced \r\nrevisions to four sets of internal guidelines that govern how \r\nthe FBI conducts its investigations.\\111\\ The Attorney General \r\nundertook his efforts without the benefit of congressional \r\ninput, citing the need to strengthen the ability of FBI agents \r\nin the field to detect and prevent future acts of terrorism. \r\nCritics of the revisions, however, believe they will do little, \r\nif anything, to improve the FBI's ability to combat terrorism. \r\nIndeed, many believe that the revisions will do nothing more \r\nthan invite the FBI to engage in the type of abuses that \r\nprecipitated the issuance of the guidelines in the first place.\r\n---------------------------------------------------------------------------\r\n \\111\\ The four sets of guidelines that were revised include:\r\n I. The Attorney General's Guidelines on General Crimes, \r\nRacketeering Enterprise and Terrorism Investigations:\r\n II. The Attorney General's Guidelines Regarding the Use of \r\nConfidential Informants;\r\n III. The Attorney General's Guidelines on Federal Bureau of \r\nInvestigation Undercover Operations; and\r\n IV. The Memorandum for the Heads and Inspectors General of \r\nExecutive Departments and Agencies: Procedure for Lawful, Warrantless \r\nMonitoring of Verbal Conversations.\r\n The charges undertaken by Attorney General Ashcroft begin with the \r\nchange in the guidelines title to the FBI Guidelines on General Crimes \r\nRacketeering Enterprises and Terrorism Enterprises. Moreover, the \r\nAttorney General also ``reportedly'' change the central role of the FBI \r\nby stating, ``[t]he highest priority is to protect the security of the \r\nnation and the safety of the American people against the depredations \r\nof terrorists and foreign aggressors.'' He tried to emphasize this \r\nchange by drafting a new introduction to the guidelines that states \r\nthat there are ``a number of changes designed to * * * facilitate the \r\nFBI's central mission of preventing the commission of terrorist acts \r\nagainst the United States and its people.''\r\n---------------------------------------------------------------------------\r\n The new guidelines give the FBI much broader authority to \r\ninvestigate potential terrorist enterprises. In addition to \r\nextending time parameters and devolving authority to the SACs, \r\nthe guidelines allow investigations to be conducted with no \r\nannual review and when no evidence of criminal activity is \r\npresent.\r\n The most drastic changes undertaken by Attorney General \r\nAshcroft are outlined in Section VI (see, ``Counter Terrorism \r\nActivities and other Authorizations'') of the new guidelines, \r\nwhich impact First and Fourth Amendment rights. Among other \r\nthings, that section specifically authorizes activities that \r\nwill detect information about terrorism and other crimes ``even \r\nin the absence of checking of leads, preliminary inquiry, and \r\nfull investigation.'' For instance, the guidelines authorize \r\nthe collection and use of information from databases either \r\npublic, commercial or non-profit, otherwise known as ``data \r\nmining.'' Second, agents are authorized to ``attend any place \r\nor event on the same terms and conditions as the public \r\ngenerally.'' Third, the FBI can ``conduct research including \r\nonline research, accessing online sites and forums, on the same \r\nterms as the public generally.'' \\112\\ Finally, the guidelines \r\nexplicitly declare that files kept as a result of any \r\ninvestigations conducted under the newly enacted guidelines, \r\nincluding those authorized in Section VI, are not subject to \r\nthe protections of the Privacy Act.\r\n---------------------------------------------------------------------------\r\n \\112\\ In an attempt to address some civil liberties concerns, the \r\nAttorney General included language in this section that prohibited FBI \r\nagents from conducting online searches using the names of individuals, \r\nexcept when incidental to topical research such as authors or parties \r\nto cases. The guidelines further state that, ``[t]he law enforcement \r\nactivities authorized in this part do not include maintaining files on \r\nindividuals solely for the purpose of monitoring activities protected \r\nby the First Amendment or the lawful exercise of any other rights \r\nsecured by the Constitution or laws of the United States.''\r\n---------------------------------------------------------------------------\r\n The revisions also relax restrictions against the use of \r\nintrusive techniques in preliminary inquiries and general \r\ninvestigations. In addition to removing terms and phrases \r\ncautioning against the use of intrusive techniques that may \r\ninvade the privacy of and reputation of subjects of preliminary \r\ninquiries, the guidelines state, ``the FBI shall not hesitate \r\nto use any lawful techniques consistent with these guidelines, \r\neven if intrusive, where the intrusiveness is warranted in \r\nlight of the seriousness of a crime, or the strength of the \r\ninformation indicating its commission or potential future \r\ncommission.'' The guidelines, also remove the requirement for \r\nsupervisory approval for the use of these intrusive techniques. \r\nMany of these safeguards had been implemented as far back as \r\n1976 with the introduction of the Levi Guidelines to address \r\ncivil liberty concerns. Regrettably, Attorney General Ashcroft \r\nturned a blind eye to these concerns.\r\n Finally, the Ashcroft guidelines considerably relax the \r\nsupervisory role of FBI HQ for all criminal investigations. For \r\nexample, the guidelines permit field agents to extend the \r\nduration of preliminary inquiries for up to one full year \r\nwithout first having to obtain approval from FBI HQ. \r\nFurthermore, as pointed out in the previous section, the \r\nguidelines permit these agents to obtain such extensions while \r\nalso enabling them to utilize many of the more intrusive \r\ninvestigative techniques. The combination of these two changes \r\nvests field agents with excessive authority and runs counter to \r\nmany initiatives announced by Director Mueller to promote \r\nincreased coordination between field offices and FBI HQ.\r\n\r\n J. MIS-CLASSIFICATION OF TERRORISM INVESTIGATIONS\r\n\r\n We are also disappointed that the majority has refused to \r\nlook into the continuing efforts by the Administration to \r\nmisclassify terrorism investigations. We hope that the U.S. \r\nwill find and catch those who we know to be terrorists. \r\nHowever, it does no one any good for the Administration to lie \r\nabout how many terrorism-related cases it has brought. In June \r\n2005, the Washington Post reported that only 39 people--not the \r\n200 implied by President Bush--have been convicted of \r\nterrorism-related crimes since 9\/11. In fact, 180 of the people \r\ncharged in these ``terrorism probes'' had no demonstrated \r\nconnection to terrorism or terrorist groups; most people were \r\nconvicted of minor crimes such as making false statements. \r\nSimilarly, 60 of 62 ``terror prosecutions'' in New Jersey in \r\n2002 were against Middle Eastern men who paid others to take \r\nschool-related English proficiency tests for them. However, the \r\nmajority has refused to take any action to determine how \r\nsuccessful our terrorism investigations and our war on \r\nterrorists actually has been, and, if these numbers are true, \r\nwhat steps are needed to make sure we actually are able to \r\ncatch and prosecute terrorists.\r\n\r\n K. SAFE HAVENS FOR TERRORIST ASSETS\r\n\r\n Another concern we have with the underlying legislation is \r\nthat it fails to deal with the current law problems limiting \r\nthe ability of victims and their families to obtain \r\ncompensation for the damages they have suffered.\r\n While, it may seem difficult to conceive of situations \r\nwhere the United States prevents its citizens from seeking \r\njustice for terrorist acts, there are several examples of how \r\nthe currentAdministration sought to barr victims from obtaining \r\nlegal judgment. First, the Administration barred the Iran hostages held \r\nfrom 1979-1981 from satisfying their judgment against the government of \r\nIran. In 2000, they initiated a suit against Iran under the terrorist \r\nState exception to the Foreign Sovereign Immunity Act. While a federal \r\ndistrict court held Iran to be liable, the U.S. government intervened \r\nand argued that the case should be dismissed because Iran had not been \r\ndesignated a terrorist state at the time of the hostage incident and \r\nbecause the Algiers Accords that led to the hostage release required \r\nthe United Sates to bar the adjudication of suits based on that \r\nincident.\\113\\ As a result, the hostages received no compensation for \r\ntheir suffering.\r\n---------------------------------------------------------------------------\r\n \\113\\ Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140 \r\n(D.D.C. 2002), aff'd 333 F.3d 228 (D.C.Cir. 2003), cert. denied 124 \r\nS.Ct. 2836 (2004).\r\n---------------------------------------------------------------------------\r\n Second, American servicemen who were harmed in a Libyan \r\nsponsored bombing of the La Belle disco in Germany were \r\nobstructed from obtaining justice for the terrorist acts they \r\nsuffered. While victims of the attack pursued settlement of \r\ntheir claims against the Libyan government, the Administration \r\nlifted sanctions against Libya without requiring as a condition \r\nthe determination of all claims of American victims of \r\nterrorism. As a result of this action, Libya abandoned all \r\ntalks with the claimants. Further, because Libya was no longer \r\nconsidered a state sponsor of terrorism, the American \r\nservicemen and women and their families were left without \r\nrecourse to obtain justice. The La Belle victims received no \r\ncompensation for their suffering.\r\n In addition, a group of American prisoners who were \r\ntortured in Iraq during the Persian Gulf war were barred by the \r\nBush Administration from collecting their judgment from the \r\nIraqi government.\\114\\ Although the 17 veterans won their case \r\nin the District Court of the District of Columbia, the \r\nAdministration argued that the Iraqi assets should stay frozen \r\nin the U.S. bank account to aid in the reconstruction of \r\nIraq.\\115\\ Claiming that the judgment should be overturned, the \r\nAdministration deems that rebuilding Iraq is more important \r\nthan the suffering of fighter pilots who during their 12-year \r\nimprisonment suffering beatings, burns, and threats of \r\ndismemberment.\r\n---------------------------------------------------------------------------\r\n \\114\\ David G. Savage, Justices Are Asked to Reject POWs' Case \r\nAgainst Iraq, L.A. Times, March 23, 2005.\r\n \\115\\ Ultimately, the Second Circuit overturned the matter stating, \r\n(1) the United States should have been allowed to intervene in the \r\ndistrict court even post judgment because of its policy concerns; (2) \r\nwe were correct that the President was not granted the authority by \r\nCongress to nullify non-sanctions\/appropriations laws, including our \r\njurisdictional statute (FSIA), in the April 2003 Emergency Wartime \r\nSupplemental Appropriations Act; but, (3) the court sua sponte ruled \r\nthat because of an intervening change in law in a separate case in \r\nJanuary 2004 (Cicippio-Puleo), the decision in Acree had to be vacated.\r\n---------------------------------------------------------------------------\r\n Finally, the World Trade Center victims were barred from \r\nobtaining judgment against the Iraqi government. In their claim \r\nagainst the Iraqi government, the victims were awarded $64 \r\nmillion against Iraq in connection with the September 2001 \r\nattacks. However, they were rebuffed in their efforts to attach \r\nthe vested Iraqi assets. While the judgment was sound, the \r\nSecond Circuit Court of Appeals affirmed the lower court's \r\nfinding that the Iraqi assets, now transferred to the U.S. \r\nTreasury, were protected by U.S. sovereign immunity and were \r\nunavailable for judicial attachment.\r\n We would hope that any final legislation would address this \r\nissue and allow U.S. victims of terrorism to obtain justice \r\nfrom terrorist supporting nations.\r\n\r\nV. The Legislation Does Not Provide Law Enforcement with the Resources \r\n and Tools It Needs To Meaningfully Combat Terrorism\r\n\r\n Two of the most important keys to winning the war against \r\nterrorism include providing sufficient funding and resources to \r\nlaw enforcement officials so that they can adequately protect \r\nthe homeland and closing current loopholes in existing law \r\nwhich make it easier for would-be terrorists to gain access to \r\ndangerous weaponry and materials. Regrettably, H.R. 3199 does \r\nabsolutely nothing to address either of these important issues.\r\n\r\n A. PREVENTING TERRORISTS FROM BUYING GUNS\r\n\r\n America's gun laws are wide open compared to the rest of \r\nthe developed world. Foreign groups promoting various forms of \r\narmed conflict, including ``jihad'' have advised would-be \r\nwarriors that, because of its lax gun laws, the United States \r\nis the ideal place to get guns and firearms training to prepare \r\nfor armed conflict.\r\n The overseas groups understand that, with little more than \r\na credit card and a driver's license, terrorists can outfit \r\nthemselves with military grade firepower--including .50-caliber \r\nsniper rifles, assault weapons, and exotic ammunition.\r\n While they are not ``weapons of mass destruction,'' any gun \r\nin the hand of a terrorist is a danger to Americans. But, \r\nshockingly, our current gun laws have an alarming loophole that \r\nallows suspected and actual members of terrorist organizations \r\nto legally purchase guns.\r\n In fact, according to a recently released GAO report \\116\\, \r\nover the course of a nine-month span last year, a total of \r\nfifty-six (56) firearm purchase attempts were made by \r\nindividuals designated as known or suspected terrorists by the \r\nfederal government.\r\n---------------------------------------------------------------------------\r\n \\116\\ G.A.O. Rep. No. 05-127, at 3 (2005).\r\n---------------------------------------------------------------------------\r\n In forty-seven (47) of those cases, state and federal \r\nauthorities were forced to permit such transactions to proceed \r\nbecause officials were unable to find any disqualifying \r\ninformation (such as a prior felony conviction or court-\r\ndetermined `mental defect') in the individual applicant's \r\nbackground.\r\n To address this problem, during the course of the \r\nCommittee's consideration of H.R. 3199, Mr. Conyers and Mr. Van \r\nHollen offered an amendment to make the transfer of a firearm \r\nto someone the person knows is on the Justice Department's \r\nViolent Gang and Terrorist Organization File (a.k.a. the \r\n``terrorist watch list'') fall under the prohibition of \r\nproviding ``material support'' to terrorists. As the name \r\nimplies, this is a list of known violent gang and terrorist \r\norganization members. It seems apparent that if the U.S. is \r\nwilling to wage war in order to keep WMDs out of the hands of \r\npossible terrorists, the U.S. should keep domestic guns out of \r\nthe hands of terrorists in the United States.\r\n Unfortunately, this amendment failed by a vote of 15-22. \r\nShockingly, a number of Republicans stated they opposed the \r\namendment because it would harm the Second Amendment rights of \r\nknown terrorists. While they are perfectly willing to intrude \r\non Americans' free speech rights, search their houses without \r\nwarrants and without cause, and to lock people up indefinitely \r\nwithout charging them of any crime, these same Members argued \r\nthat a terrorist's right to bear arms was more important than \r\ntrying to stop terrorists from buying guns and potentially \r\nusing them for another deadly attack on the United States.\r\n\r\n B. PREVENTING THE SALE AND MANUFACTURE OF .50-CALIBER GUNS\r\n\r\n While current law does regulate the transfer of certain \r\nfirearms including machine guns, it does not regulate the sale \r\nof .50-caliber sniper rifles which are advertised by their \r\nmanufacturers as capable of shooting down aircraft. These \r\nweapons are important for military use, but are currently also \r\navailable for purchase by the general public, including \r\nterrorists. We know that in the 1980s Essam Al-Ridi purchased \r\n.50-caliber rifles in Texas and then shipped them to Osama bin \r\nLaden. Similarly, in 1989, a gunrunner named Florin Krasniqi \r\ncame to the U.S. to purchase .50-caliber rifles and \r\nsubsequently shipped them to the Kosovo Liberation Army.\r\n Capable of inflicting a devastatingly accurate impact from \r\nwell over a mile away, the U.S. Army handbook on urban combat \r\nstates that .50-caliber sniper rifles are intended for use as \r\nanti-materiel weapons, designed to attack bulk fuel tanks and \r\nother high-value targets from a distance, using ``their ability \r\nto shoot through all but the heaviest shielding material.'' \r\nThese weapons are a serious threat for use against civil \r\naviation, hazardous cargo transport vehicles and rail cars \r\ncarrying hazardous materials such as chlorine gas. And needless \r\nto say, their ability to emit powerful projectiles accurately \r\nover long distances make .50-caliber rifles a favorite weapon \r\nof war lords, drug cartels and terrorists due to its \r\nunparalleled potential for damage.\r\n During the course of the Committee's consideration of H.R. \r\n3199, Ms. Lofgren introduced an amendment which would have made \r\nit a crime under the material support provision of the Patriot \r\nAct to transfer a .50-caliber sniper rifle to any person the \r\ntransferor knows to be a member of Al Qaeda. Obviously, such an \r\namendment would provide an important mechanism to help keep \r\ndangerous, high-powered weapons out of the hands of known \r\nterrorists. However, once again, the Republicans voted down \r\nthis necessary and commonsense measure to help protect the \r\nUnited States from harm.\r\n\r\n C. REGULATING THE SALE OF SMOKELESS AND BLACK POWDER\r\n\r\n Alarmed by a manifesto issued by confessed Olympic bomber \r\nEric Rudolph justifying violence to stop abortions, the federal \r\nBureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is \r\nnow urging clinics to evaluate and enhance their security. Yet \r\nwhile the ATF warns potential targets of this threat, \r\nsupporters of H.R. 3199 refuse to do anything through this \r\nlegislation to stop the virtually unregulated sale of the two \r\nsubstances most commonly used in improvised explosive devices \r\nin the United States--smokeless powder and black powder.\r\n Smokeless powder--Rudolph's weapon of choice in the Olympic \r\nPark bombing--is used by people who like to ``reload'' their \r\nown ammunition. Black powder is used in muzzle-loading guns for \r\nhunting and historical re-enactments. Because smokeless powder \r\nqualifies as ``small arms ammunition and components thereof, it \r\nis exempt from the federal law regulating the manufacture and \r\nsale of explosives.\r\n Commercially manufactured black powder in quantities of \r\nless than 50 pounds is also exempt. Rudolph reportedly bought \r\nthe smokeless powder he packed into the Olympic Park bomb from \r\na Tennessee gun dealer, one of approximately 60,000 federally \r\nlicensed firearms dealers (FFLs) in America.\r\n After the September 11th attacks, ATF became concerned that \r\nother terrorists would utilize the explosives loophole \r\nexploited by Rudolph. The agency started a campaign urging FFLs \r\nto ``Be Aware for America,'' and in a July 2004 letter ATF \r\nreminded dealers, ``Some of the products you may carry in your \r\ninventory, such as black powder and smokeless powder, could be \r\nused in acts of violence. While smokeless powder and black \r\npowder generally are exempt from the Federal explosives laws, \r\nthese products are often used to make illegal or `improvised \r\nexplosives devices' and pipe bombs.''\r\n Unfortunately, thanks to the powerful gun lobby, for now \r\nthis mild entreaty to gun dealers appears to be the full extent \r\nof the federal government's efforts to prevent terrorists from \r\ngetting smokeless or black powder.\r\n\r\n D. INCREASING GRANTS TO FIRST RESPONDERS\r\n\r\n Another problem in the war on terror is that the United \r\nStates has no sufficient allocated money to keep our country \r\nsafe. Local and state law enforcement officers have been laid \r\noff, schools are getting more dangerous by the second, and not \r\nenough persons have been hired to perform intelligence, \r\nterrorism and homeland security duties.\r\n In local communities across the United States, the first \r\nline of defense against terrorists and other violent crime is \r\nthe local police department. More police on the streets could \r\nbe useful in thwarting potential terrorist attacks and also \r\nprotecting the community from the more conventional violent \r\ncriminals and violent crimes.\r\n During the 1990s, the Clinton Administration implemented \r\nthe Office of Community Oriented Policing Services (COPS). The \r\ngoal of the program was to put 100,000 new police officers on \r\nthe streets of America's communities. A new GAO Report \r\nindicates that the COPS program did cause the level of violent \r\ncrimes in America to decline. During the time that agencies \r\nwere spending COPS funds, violent crime declined.\\117\\ For \r\nexample, between 1994 and 2001, the number of violent crimes \r\ndeclined from about 1.9 million to about 1.4 million (or about \r\n23 percent), and the violent crime rate per 100,000 population \r\ndeclined from 714 to 504 (or about 29 percent).\\118\\\r\n---------------------------------------------------------------------------\r\n \\117\\ G.A.O. Rep. No. 05-699 at 2 (2005).\r\n \\118\\ Ibid.\r\n---------------------------------------------------------------------------\r\n Mr. Weiner and Ms. Sanchez therefore offered an amendment \r\nto expand the grants available for such measures. Their \r\namendment would increase funding for first responders in state \r\nand local communities, provide for retention funds to keep law \r\nenforcement in depressed areas, and increase funding for school \r\nsecurity as well as intelligence, terrorism, and homeland \r\nsecurity programs. Unfortunately, the Republicans derailed this \r\namendment by raising a point of order on the grounds of \r\ngermaneness.\r\n\r\n E. SECURING OUR NATION'S PORTS\r\n\r\n The ``soft underbelly'' of our national security defensive \r\nagainst terrorism is the security of our nation's ports. This \r\nfact has been repeated in numerous studies and even cited in \r\nthe documentary Fahrenheit 911 by Michael Moore. According to a \r\nreport in the New York Times, an audit on spending for port \r\nsecurity shows ``far too little money appropriated; much of the \r\nappropriated money not spent; and much of the money that was \r\nspent going for the wrong things.'' \\119\\ Just recently, the \r\nUnited States Coast Guard estimated that scanning equipment for \r\nthe six million shipping containers that enter the United \r\nStates every year would cost $5.4 billion over the next 10 \r\nyears; however, federal port security grant programs have only \r\nallocated less than $600 million since 2002.\\120\\\r\n---------------------------------------------------------------------------\r\n \\119\\ Follow the Port Security Money, N.Y. Times, February 28, \r\n2005.\r\n \\120\\ Ibid.\r\n---------------------------------------------------------------------------\r\n It is only a matter of time before terrorists will exploit \r\nthis weakness and possibly transport biological\/chemical \r\nweapons and\/or weapons of mass destruction into the United \r\nStates using cargo containers. In 2002, terrorists had an 82.5 \r\npercent chance of doing this completely undetected. This is an \r\nunacceptable risk to the American government and people.\r\n\r\n F. ELIMINATING TRADE WITH TERRORIST COUNTRIES\r\n\r\n The United States government has successfully targeted \r\nvarious front organizations in the United States that send \r\nfunds to terrorist causes all over the world; however, phoney \r\nIslamiccharities are not the only organizations in the United \r\nStates that have done business with countries that sponsor terrorism. \r\nAccording to a 60 Minutes report, ``there are U.S. companies that are \r\nhelping drive the economies of countries like Iran, Syria, and Libya, \r\nall places that have sponsored terrorism.'' \\121\\ William Thompson, New \r\nYork City comptroller, has identified three companies, Halliburton, \r\nConoco-Phillips, and General Electric, that have invested in these \r\n``rouge countries.'' \\122\\ Halliburton is the same company that Vice \r\nPresident Richard Cheney ran from 1995 to 2000, ``during which time \r\nHalliburton Products and Services set up shop in Iran. Today, its sells \r\nabout $40 million a year worth of oil field services to the Iranian \r\ngovernment.'' \\123\\ According to Bob Herbert, Halliburton has had a \r\n``history of ripping off the government'' and made ``zillions doing \r\nbusiness in countries that sponsor terrorism, including members of the \r\n`axis of evil' that is so despised by this president.'' \\124\\\r\n---------------------------------------------------------------------------\r\n \\121\\ Doing Business with the Enemy, 60 Minutes (2004), at http:\/\/\r\nwww.cbsnews.com\/stories\/2004\/01\/22\/60minutes\/main595214.shtml.\r\n \\122\\ Ibid.\r\n \\123\\ Ibid.\r\n \\124\\ Bob Herbert, Dancing with the Devil, N.Y. Times, May 22, \r\n2003.\r\n---------------------------------------------------------------------------\r\n Currently, United States law prohibits U.S. companies from \r\ndoing business with nations that sponsor terrorism.\\125\\ \r\nHowever, some U.S. companies have found a loophole in the law \r\nand are ``deliberately bypassing U.S. sanction laws by the use \r\nof the `foreign subsidiary' loophole, thereby providing \r\nterrorist states with more revenue to finance terrorist \r\noperations.'' \\126\\ U.S. Congressman Henry Waxman found that \r\nHalliburton in particular has circumvented the law by setting \r\nup subsidiaries in places such as the Cayman Islands.\\127\\\r\n---------------------------------------------------------------------------\r\n \\125\\ International Emergency Economic Powers Act, Sec. 35, 50 \r\nU.S.C. Sec. 1701 (2003).\r\n \\126\\ Lautenberg to Offer Amendment to the FSC-ETI Bill, Sen. \r\nLautenberg's Website (2004), at http:\/\/lautenberg.senate.gov\/\r\n lautenberg\/press\/2003\/01\/2004422BO8.html.\r\n \\127\\ Herbert, supra note 4.\r\n---------------------------------------------------------------------------\r\n In a effort to close the loophole, U.S. Senator Frank \r\nLautenberg offered S.A. 3151, an amendment to the International \r\nEmergency Economic Powers Act, that redefined corporate \r\nentities subject to U.S. sanction law to include ``not only \r\nU.S. companies and all foreign branches, but also foreign \r\nsubsidiaries controlled over 50 percent by their parent \r\nAmerican company.'' \\128\\ This amendment would have stopped \r\ncompanies like Halliburton who have subsidiary companies that \r\nconduct business with countries like Iran and Lybia. The \r\namendment was defeated in the U.S. Senate by one vote in 2004.\r\n---------------------------------------------------------------------------\r\n \\128\\ Lautenberg to Offer Amendment to the FSC-ETI Bill, supra note \r\n6.\r\n---------------------------------------------------------------------------\r\n\r\n G. PENALIZING THOSE WHO LEAK CLASSIFIED INFORMATION\r\n\r\n This Administration and the Republican majority in Congress \r\nhave continually accused Democratic Members of Congress, as \r\nwell as many American citizens, of ``aiding the terrorists'' by \r\nspeaking out against actions and policies that appear extreme \r\nand unnecessary. However, these same individuals have remained \r\nsilent when it has been discovered that members of the \r\nAdministration and others have knowingly leaked classified \r\ninformation that identifies covert operatives and literally put \r\ntheir lives at risk.\r\n Current U.S. law concerning such leaks is insufficient to \r\nprotect those who put their lives at risk every day for this \r\ncountry. Many have noted that it is difficult to meet the \r\nrequirements necessary to be found in violation of this law. As \r\na result, Mr. Wexler offered an amendment to fix this problem. \r\nThe Wexler amendment would penalize anyone who reveals any \r\ninformation that might identify an intelligence officer or \r\nsource and put their lives in danger. However, the Republicans \r\ndefeated this amendment by voice vote.\r\n\r\n H. IMPROVING THE TERRORIST WATCH LIST\r\n\r\n Finally, there is true need for an accurate and up-to-date \r\nTerrorist Watch List such that it can be effectively used to \r\nidentify and catch suspected and known terrorists. To this end, \r\nit is important to ensure that the list does not misidentify \r\npeople and therefore divert needed resources away from catching \r\nthe true terrorists.\r\n Mr. Van Hollen introduced an amendment which would require \r\nthe Inspector General to report to Congress on the progress of \r\nthe Terrorist Screening Center in developing procedures by \r\nwhich to remove misidentified names from the Terrorist Watch \r\nList. This amendment is important on two fronts: (1) it will \r\nensure that resources are not spent tracking the wrong people, \r\nand (2) it will protect Americans and other persons who are \r\nmistakenly identified as terrorists by providing a mechanism \r\nfor them to clear their name. The much publicized case of \r\nSenator Edward Kennedy spending many hours to clear his name \r\nfrom this list highlights the problem confronting ordinary \r\ncitizens. And, our counterterrorism officers need to be assured \r\nthat they can focus on stopping those who truly intend to do \r\nharm to the United States. This amendment was rejected by the \r\nmajority.\r\n Considering that the majority often suggests we are in a \r\nperpetual war against terrorists, including terrorists who wish \r\nto attack the United States, we are disappointed that they \r\nflatly rejected amendments which would directly help the United \r\nStates fight terrorists and prevent terrorism. That all of \r\nthese reasonable measures to enure our safety were rejected \r\ncontributed to our collective decision not to support this \r\nbill.\r\n\r\n VI. Description of Amendments Offered by Democratic Members\r\n\r\n During the mark-up thirty-nine (39) amendments were offered \r\nby Democratic members. The following section provides a brief \r\ndescription of each of these amendments:\r\n 1. Nadler Amendment--Description of Amendment: The \r\namendment would amend section 215 of the PATRIOT Act to allow \r\nfor recipients to challenge the orders, and to allow recipients \r\nto petition to set aside the non-disclosure requirement. It \r\nwould also limit Section 215 order to those certified as \r\n``agents of a foreign power.''\r\n Vote on Amendment: The amendment was defeated by a vote of \r\n23-12. Ayes: Representatives Conyers, Berman, Boucher, Nadler, \r\nScott, Watt, Waters, Delahunt, Weiner, Sanchez, Van Hollen, \r\nWasserman Schultz, Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Cannon, \r\nInglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, \r\nKing, Feeney, Franks, Gohmert, Lofgren, Schiff.\r\n 2. Scott Amendment--Description of Amendment: The amendment \r\ndealt with the limitation on authority to delay notice of \r\nsearch warrants. This amendment would strike ``reasonable \r\nperiod'' from section 3103a of Title 18, U.S.C. and replace \r\nwith ``seven calender days'' and applications thereafter to be \r\nextended by the court for an additional 30 calender days for \r\ngood cause shown to the court.\r\n Vote on Amendment: The amendment was withdrawn.\r\n 3. Waters Amendment--Description of Amendment: The \r\namendment stated that national security letters would not be \r\nissued to a health insurance company.\r\n Vote on Amendment: The amendment was defeated by a vote of \r\n23-14. Ayes: Representatives Conyers, Berman, Boucher, Nadler, \r\nScott, Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff, \r\nSanchez, Van Hollen, Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, \r\nCannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, \r\nForbes, King, Feeney, Franks, Gohmert, Wasserman Schultz.\r\n 4. Scott Amendment--Description of Amendment: The amendment \r\nis a second degree amendment to the Lungren Amendment. The \r\nLungren Amendment sunsetted Sections 206 and 215 of the PATRIOT \r\nAct in 2015. The Scott Amendment would sunset these provisions \r\nin 2009.\r\n Vote on Amendment: The amendment was defeated by a party \r\nline vote of 21-15. Ayes: Representatives Conyers, Berman, \r\nNadler, Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, \r\nWeiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz, Nays: \r\nRepresentatives Sensenbrenner, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, \r\nHostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, \r\nFeeney, Franks, Gohmert.\r\n 5. Nadler Amendment--Description of Amendment: This a \r\nsecond degree amendment to the Lungren amendment. It would \r\nsunset Sections 206 and 215 in 2011.\r\n Vote on Amendment: The amendment was defeated on a party \r\nline vote of 9-18. Ayes: Representatives Conyers, Nadler, \r\nScott, Watt, Meehan, Delahunt, Schiff, Sanchez, Nays: \r\nRepresentatives Sensenbrenner, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, \r\nHostettler, Green, Issa, Forbes, King, Feeney, Gohmert.\r\n 6. Nadler and Lofgren Amendment--Description of Amendment: \r\nThis amendment would sunset the remaining 14 expiring \r\nprovisions in 2015.\r\n Vote on Amendment: The amendment was defeated on a party \r\nline vote of 12-21. Ayes: Representatives Conyers, Berman, \r\nBoucher, Nadler, Scott, Lofgren, Meehan, Delahunt, Weiner, \r\nSchiff, Sanchez, Van Hollen; Nays: Representatives \r\nSensenbrenner, Hyde, Coble, Smith, Gallegly, Chabot, Lungren, \r\nJenkins, Cannon, Inglis, Hostettler, Green, Keller, Issa, \r\nFlake, Pence, Forbes, King, Feeney, Franks, Gohmert.\r\n 7. Van Hollen and Conyers Amendment--Description of \r\nAmendment: This amendment would close the gun buying loophole \r\nby prohibiting the knowing sale of firearms to persons on the \r\nViolent Gang and Terrorist Organization File.\r\n Vote on Amendment: The Amendment was defeated by 15-22. \r\nAyes: Representatives Conyers, Berman, Nadler, Scott, Lofgren, \r\nWaters, Meehan, Delahunt, Wexler, Weiner, Schiff, Sanchez, Van \r\nHollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, \r\nHyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, \r\nJenkins, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, \r\nForbes, King, Feeney, Franks, Gohmert, Boucher.\r\n 8. Berman and Delahunt Amendment--Description of Amendment: \r\nThis amendment would require a report on the use of data-mining \r\ntechnology and procedures, as well as measures to protect \r\nprivacy with the use of data-mining.\r\n Vote on Amendment: The amendment was withdrawn.\r\n 9. Schiff and Waters Amendment--Description of Amendment: \r\nThis amendment would allow only the FBI Director to obtain \r\nmedical records, and records from libraries and bookstores \r\nunder Section 215 of the PATRIOT Act.\r\n Vote on Amendment: The amendment was withdrawn.\r\n 10. Wexler Amendment--Description of Amendment: This \r\namendment adds the revealing of information about the identity \r\nof a covert operative to the list of predicate offenses for \r\nproviding material support for terrorism.\r\n Vote on Amendment: The amendment was withdrawn.\r\n 11. Schiff Amendment--Description of Amendment: This \r\namendment would add to the list of activities which, if done \r\nwillfully, will result in violating the statute which prohibits \r\nthe planning of terrorist attacks on mass transportation (18 \r\nUSC 1993(a)(3)).\r\n Vote on Amendment: The amendment was agreed to by voice \r\nvote.\r\n 12. Lofgren Amendment--Description of Amendment: This \r\namendment would prohibit the sale of .50-caliber sniper rifles \r\nto a person known to be a member of Al Qaeda.\r\n Vote on Amendment: This Amendment failed on a party line \r\nvote of 13-22. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Waters, Wexler, Weiner, Schiff, Sanchez, \r\nVan Hollen, Wasserman Schultz; Nays: Representatives \r\nSensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, \r\nLungren, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, \r\nIssa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.\r\n 13. Weiner and Sanchez Amendment--Description of Amendment: \r\nThis Amendment would increase grants to first responders, as \r\nwell as grants for school security and retention grants for \r\nlocal law enforcement.\r\n Vote on Amendment: This amendment was ruled non-germane.\r\n 14. Lofgren Amendment--Description of Amendment: This \r\namendment would require the Inspector General of the Department \r\nof Justice to review the detentions of persons under the \r\nmaterial witness statute (18 USC 3144) in its reports required \r\nby Section 1001 of the PATRIOT Act.\r\n Vote on Amendment: This amendment was agreed to \r\nunanimously, on a vote of 34-0.\r\n 15. Schiff Amendment--Description of Amendment: This \r\namendment would amend section 105(c) of the Foreign \r\nIntelligence Surveillance Act (Section 206 of the PATRIOT Act) \r\nto require that where the identity of the target of \r\nsurveillance is not known, a specific description is provided \r\nof the target.\r\n Vote on Amendment: This amendment failed on a party line \r\nvote of 15-22. Ayes: Representatives Conyers, Berman, Boucher, \r\nNadler, Scott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, \r\nSchiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: \r\nRepresentatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon,Inglis, Hostettler, \r\nGreen, Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, \r\nGohmert.\r\n 16. Nadler and Jackson Lee Amendment--Description of \r\nAmendment: This amendment would amend Section 206 of the \r\nPATRIOT Act to make FISA wiretaps like criminal wiretaps in \r\nthat the FBI must choose between obtaining either a roving \r\nwiretap or a ``John Doe'' wiretap.\r\n Vote on Amendment: The Amendment was withdrawn.\r\n 17. Watt Amendment--Description of Amendment: This \r\namendment allows targets of nationwide search warrants to \r\nchallenge them in the district where the warrant is served.\r\n Vote on Amendment: This amendment was defeated by a vote of \r\n14-24: Ayes: Representatives Conyers, Berman, Boucher, Nadler, \r\nScott, Watt, Lofgren, Waters, Meehan, Delahunt, Wexler, Weiner, \r\nSanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, \r\nCannon, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, \r\nForbes, King, Feeney, Franks, Gohmert, Schiff, Wasserman \r\nSchultz.\r\n 18. Schiff Amendment--Description of Amendment: This \r\namendment (a) adds to the list of predicate offenses which are \r\nconsidered ``federal crimes of terrorism''; (b) allows for the \r\nforfeiture of property involved in the trafficking of weapons \r\nof mass destruction; and (c) adds numerous crimes related to \r\nterrorism to the list of offenses for which oral and wire \r\ncommunications may be intercepted under 18 U.S.C. 2516.\r\n Vote on Amendment: This amendment was agreed to by voice \r\nvote.\r\n 19. Lofgren Amendment--Description of Amendment: This \r\namendment would ensure that no law passed after 9\/11, including \r\nthe PATRIOT Act, would suspend the writ of habeas corpus.\r\n Vote on Amendment: This amendment was initially agreed to \r\nby voice vote. There was then a successful vote in favor of \r\nreconsidering the amendment. The amendment then was defeated on \r\na party line vote of 14-23. Ayes: Representatives Conyers, \r\nBerman, Boucher, Nadler, Scott, Watt, Lofgren, Delahunt, \r\nWexler, Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; \r\nNays: Representatives Sensenbrenner, Hyde, Coble, Smith, \r\nGallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, \r\nInglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, \r\nKing, Feeney, Franks, Gohmert.\r\n 20. Schiff Amendment--Description of Amendment: This \r\namendment would eliminate the nondisclosure requirement of a \r\nForeign Intelligence Surveillance Court order for business \r\nrecords from a library, bookstore, or for medical records, when \r\nan individual is a citizen of the United States, at the \r\nconclusion of investigation.\r\n Vote on Amendment: The amendment failed by a recorded vote \r\nof 13 yeas and 20 nays. Ayes: Representatives Conyers, Berman, \r\nBoucher, Scott, Waters, Delahunt, Wexler, Weiner, Schiff, \r\nSanchez, Van Hollen, Wasserman Schultz, Goodlatte; Nays: \r\nRepresentatives Sensenbrenner, Coble, Smith, Gallegly, Chabot, \r\nLungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, \r\nKeller, Issa, Flake, Pence, Forbes, King, Feeney, Franks.\r\n 21. Wexler Amendment--Description of Amendment: This \r\namendment would add to Section 805 on Material Support for \r\nTerrorism in the PATRIOT Act the act of revealing identifying \r\ninformation about a U.S. covert operative.\r\n Vote on Amendment: This amendment failed on a voice vote.\r\n 22. Schiff Amendment--Description of Amendment: This \r\namendment would obligate all funds authorized for the Victims \r\nof Crime Fund, through the Victims of Crime Act of 1984, to be \r\nused.\r\n Vote on Amendment: This amendment was ruled non-germane.\r\n 23. Watt and Waters Amendment--Description of Amendment: \r\nThis amendment would strike section 8(c) of H.R. 3199 to \r\neliminate the nondisclosure requirement of a Foreign \r\nIntelligence Surveillance Act Court order for business records \r\nin a national security case unless law enforcement in an \r\n``application for such an order provides specific and \r\narticulable facts giving the applicant reason to believe that \r\ndisclosure would result'' in adverse affects specified in the \r\namendment.\r\n Vote on Amendment: This amendment failed on a vote of 13-\r\n23. Ayes: Representatives Conyers, Berman, Nadler, Scott, Watt, \r\nLofgren, Waters, Delahunt, Wexler, Weiner, Sanchez, Van Hollen, \r\nWasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Smith, Gallegly, Goodlatte, Lungren, Jenkins, Cannon, \r\nBaucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, \r\nForbes, King, Feeney, Franks, Gohmert, Schiff.\r\n 24. Scott Amendment--Description of Amendment: This \r\namendment would entitle a person who prevails on a challenge of \r\nthe legality of a section 215 order to reasonable attorneys \r\nfees, if any, incurred by the person in pursuing the challenge.\r\n Vote on Amendment: The amendment failed by a party line \r\nvote of 14-22. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Waters, Delahunt, Wexler, Weiner, Schiff, \r\nSanchez, Van Hollen, Wasserman Schultz; Nays: Representatives \r\nSensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, \r\nLungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, \r\nKeller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, \r\nGohmert.\r\n 25. Schiff Amendment--Description of Amendment: This \r\namendment would sunset Section 6001 of the Intelligence Reform \r\nand Terrorism Prevention Act of 2004 (``lone wolf'') in 2008.\r\n Vote on Amendment: This amendment failed on a party line \r\nvote 14-22. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Weiner, \r\nSanchez, Van Hollen, Wasserman Schultz; Nays: Representatives \r\nSensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, \r\nLungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, \r\nKeller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, \r\nGohmert.\r\n 26. Nadler, Jackson Lee and Waters Amendment--Description \r\nof Amendment: This amendment would limit the length of delays \r\nfor delayed notification search warrants under Section 213 of \r\nthe PATRIOT Act. Delays would be limited to 30 days, with \r\nextensions of up to 60 days.\r\n Vote on Amendment: This Amendment was withdrawn.\r\n 27. Jackson Lee Amendment--Description of Amendment: This \r\namendment would amend Section 218 of the PATRIOT Act to provide \r\nthat notice be given to the target of a search if the target is \r\na U.S. person who is found not to be an agent of a foreign \r\npower.\r\n Vote on Amendment: This amendment failed on a party line \r\nvote of 10-23. Ayes: Representatives Conyers, Nadler, Scott, \r\nWatt, Jackson Lee, Waters, Weiner, Sanchez, Van Hollen, \r\nWasserman Schultz; Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Smith, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, \r\nCannon, Baucus, Inglis, Hostettler, Green, Keller, Issa, Flake, \r\nPence, Forbes, King, Feeney, Franks, Gohmert.\r\n 28. Flake and Nadler Amendment--Description of Amendment: \r\nThis amendment would amend Section 213 of the PATRIOT Act to \r\nprovide that delays in notification can last for 180 days, with \r\nextensions of up to 90 days.\r\n Vote on Amendment: This amendment was agreed to by voice \r\nvote.\r\n 29. Conyers Amendment--Description of Amendment: This \r\namendment would (a) treat electronic communications \r\ninterception like wire and oral communications under 18 US \r\n2515; (b) require a report on the disclosure of contents of \r\nelectronic communications by the A.C. to the Congress; and (c) \r\nincrease to $10,000 the amount recoverable under 18 USC \r\n2707(c).\r\n Vote on Amendment: This amendment was defeated on a party \r\nline vote of 14-23. Ayes: Representatives Conyers, Berman, \r\nNadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, \r\nWeiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: \r\nRepresentatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, \r\nHostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, \r\nFeeney, Franks, Gohmert\r\n 30. Nadler Amendment--Description of Amendment: This \r\namendment would authorize disclosure of a National Security \r\nLetter to ``qualified persons,'' including one's attorney. It \r\nalso provides that the non-disclosure period will last 180 \r\ndays, with extensions of up to 90 days, if the government \r\nproves disclosure would result in a clear harm.\r\n Vote on Amendment: This amendment was defeated 14-23. Ayes: \r\nRepresentatives Conyers, Berman, Nadler, Scott, Watt, Lofgren, \r\nJackson Lee, Waters, Delahunt, Weiner, Schiff, Sanchez, Van \r\nHollen, Wasserman Schultz; Nays: Representatives Sensenbrenner, \r\nHyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, \r\nJenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, \r\nIssa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.\r\n 31. Schiff Amendment--Description of Amendment: This \r\namendment would grant citizenship to alien spouses and children \r\nof certain victims of the 9\/11 attacks.\r\n Vote on Amendment: This amendment was ruled non-germane.\r\n 32. Scott Amendment--Description of Amendment: This \r\namendment amend section 105(c) of the Foreign Intelligence \r\nSurveillance Act to require surveillance may be directed at a \r\nplace or facility only for such time as the applicant believes \r\nthat such facility or place is being used, or about to be used \r\nby the target of the surveillance.\r\n Vote on Amendment: The amendment failed by a party line \r\nvote of 13 yeas to 23 nays. Ayes: Representatives Conyers, \r\nBerman, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, \r\nDelahunt, Weiner, Sanchez, Van Hollen, Wasserman Schultz; Nays: \r\nRepresentatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, \r\nHostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, \r\nFeeney, Franks, Gohmert.\r\n 33. Schiff Amendment--Description of Amendment: This \r\namendment would require a report on the use of National \r\nSecurity Letters (Section 505 of the PATRIOT Act) by the \r\nAttorney General for the preceding year.\r\n Vote on Amendment: This amendment failed by a party line \r\nvote of 15-21. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Jackson Lee, Waters, Delahunt, Wexler, \r\nWeiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: \r\nRepresentatives Sensenbrenner, Hyde, Coble, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, \r\nHostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, \r\nFeeney, Franks.\r\n 34. Jackson Lee Amendment--Description of Amendment: This \r\namendment would prohibit medical records from being obtained \r\nwith a Section 215 order.\r\n Vote on Amendment: This amendment failed by a vote of 12-\r\n24. Ayes: Representatives Conyers, Nadler, Scott, Watt, \r\nLofgren, Jackson Lee, Waters, Delahunt, Wexler, Weiner, \r\nSanchez, Van Hollen; Nays: Representatives Sensenbrenner, Hyde, \r\nCoble, Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, \r\nBaucus, Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, \r\nForbes, King, Feeney, Franks, Gohmert, Schiff, Wasserman \r\nSchultz.\r\n 35. Van Hollen Amendment--Description of Amendment: This \r\namendment requires a report by the DOJ Inspector General on \r\nprocedures and guidelines to ensure the accuracy of the \r\nTerrorist Watch List, including how to remove misidentified \r\npersons.\r\n Vote on Amendment: This amendment failed on a party line \r\nvote of 15-23. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Jackson Lee, Meehan, Delahunt, Wexler, \r\nWeiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; Nays: \r\nRepresentatives Sensenbrenner, Hyde, Coble, Smith, Gallegly, \r\nGoodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, Inglis, \r\nHostettler, Green, Keller, Issa, Flake, Pence, Forbes, King, \r\nFeeney, Franks, Gohmert.\r\n 36. Nadler Amendment--Description of Amendment: This \r\namendment allows for the recipient of a National Security \r\nLetter to disclose receipt of the Letter to a ``qualified \r\nperson,'' including one's attorney.\r\n Vote on Amendment: This Amendment failed on a party line \r\nvote 16-23. Ayes: Representatives Conyers, Berman, Nadler, \r\nScott, Watt, Lofgren, Jackson Lee, Waters, Meehan, Delahunt, \r\nWexler, Weiner, Schiff, Sanchez, Van Hollen, Wasserman Schultz; \r\nNays: Representatives Sensenbrenner, Hyde, Coble, Smith, \r\nGallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Baucus, \r\nInglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, \r\nKing, Feeney, Franks, Gohmert.\r\n 37. Scott Amendment--Description of Amendment: This \r\namendment would exempt humanitarian support such as medical \r\nservices, food and water from the prohibition on providing \r\nMaterial Support to Terrorists (Section 805 of the PATRIOT \r\nAct).\r\n Vote on Amendment: This amendment failed on a vote of 7-31. \r\nAyes: Representatives Conyers, Scott, Watt, Jackson Lee, \r\nWaters, Meehan, Delahunt; Nays: Representatives Sensenbrenner, \r\nHyde, Coble, Smith, Gallegly, Goodlatte, Chabot, Lungren, \r\nJenkins, Cannon, Baucus, Inglis, Hostettler, Green, Keller, \r\nIssa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert, \r\nBerman, Nadler, Wexler, Weiner, Schiff, Sanchez, Van Hollen, \r\nWasserman Schultz.\r\n 38. Jackson Lee Amendment--Description of Amendment: This \r\namendment would require a report by the Inspector General of \r\nDOJ under Section 1001 of the PATRIOT Act on any authorities \r\nused that go beyond the Attorney General Guidelines written in \r\n1989, such as racial profiling.\r\n Vote on Amendment: This amendment failed on a vote of 13-\r\n25. Ayes: Representatives Conyers, Nadler, Scott, Watt, \r\nLofgren, Jackson Lee, Waters, Meehan, Wexler, Weiner, Sanchez, \r\nVan Hollen, Wasserman Schultz; Nays: Representatives \r\nSensenbrenner, Hyde, Coble, Smith, Gallegly, Goodlatte, Chabot, \r\nLungren, Jenkins, Cannon, Baucus, Inglis, Hostettler, Green, \r\nKeller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, \r\nGohmert, Berman, Delahunt.\r\n 39. Nadler and Scott Amendment--Description of Amendment: \r\nThis amendment amends the National Security Letter statutes to \r\nallow recipients to challenge them in court. It also requires \r\npen register and trap-and-trace orders under Section 214 to be \r\nlimited to terrorism or espionage investigations.\r\n Vote on Amendment: This amendment was defeated on a voice \r\nvote.\r\n\r\n VII. Conclusion\r\n\r\n There is no more difficult task we have as legislators than \r\nbalancing our nation's need for security against our citizens' \r\ncivil liberties. By passing this bill which largely ignores the \r\nmost serious abuses of the PATRIOT Act, ignores the unilateral \r\nmisuse of power by the Administration, and fails to provide \r\nadequate resources and funding to those on the ``front line'' \r\nin the fight against terrorism, we believe we will be failing \r\nin our task.\r\n If we are serious about combating terror in the 21st \r\ncentury, we must move beyond symbolic gestures and begin to \r\nmake the hard choices needed to protect our nation. \r\nUnfortunately, this legislation does not make those choices. \r\nThe lessons of September 11 are that if we allow law \r\nenforcement to do their work free of political interference, if \r\nwe give them adequate resources and modern technologies, we can \r\nprotect our citizens without intruding on their liberties.\r\n The bill before us today does not meet this test. It is our \r\nhope that we can come together on the House Floor and in \r\nconference and craft a bill that fights terrorism the right \r\nway, consistent with our constitution and our values, and in a \r\nmanner that serves as a model for the rest of the world. For \r\nall of the aforementioned reasons, we respectfully dissent.\r\n\r\nAppendix A, Section-By-Section Summary of the USA PATRIOT Act of 2001, \r\n H.R. 3162\r\n\r\n\r\n TITLE I: ENHANCING DOMESTIC SECURITY\r\n\r\n Section 101: Counterterrorism fund--Establishes a \r\ncounterterrorism fund to rebuild any Justice Department \r\ncomponent that has been damaged or destroyed as a result of a \r\nterrorism incident; provide support for investigations and to \r\npay terrorism-related rewards; and conduct terrorism threat \r\nassessments.\r\n Section 102: Sense of Congress condemning discrimination \r\nagainst Arab and Muslim Americans.\r\n Section 103: Increased funding for the FBI's technical \r\nsupport center--Authorizes $200 million for each of FY 2002, \r\n2003, and 2004 for the technical support center.\r\n Section 104: Requests for military assistance to enforce \r\nprohibition in certain emergencies--Allows military to assist \r\nstate and local law enforcement with domestic chemical weapons \r\nemergencies.\r\n Section 105: Expansion of National Electronic Crime Task \r\nForce Initiative--Directs the Secret Service to develop a \r\nnational network with electronic crime task forces based on the \r\nNew York Electronic Crime Task Force model.\r\n Section 106: Presidential Authority--Expands International \r\nEconomic Emergency Powers Act to allow the President to \r\nconfiscate and vest properties of an enemy when United States \r\nis engaged in military hostilities or has been subject to an \r\nattack by that enemy. It allows classified information, used to \r\nmake a determination regarding national security or terrorism \r\ncases, to be submitted and in camera to the reviewing court of \r\nsuch determinations.\r\n\r\n TITLE II: ENHANCED SURVEILLANCE PROCEDURES\r\n\r\n Section 201: Authority to Intercept Wire, Oral, and \r\nElectronic Communications Relating to Terrorism--Adds terrorism \r\noffenses to the list of predicates for obtaining title III \r\nwiretaps.\r\n Section 202: Authority to Intercept Wire, Oral, and \r\nElectronic Communications Relating to Computer Fraud and Abuse \r\nOffenses--Adds computer fraud and abuse offenses to the list of \r\npredicates for obtaining title III wiretaps.\r\n Section 203: Authority to Share Criminal Investigative \r\nInformation--Allows intelligence information obtained in grand \r\njury proceedings to be shared with any law enforcement, \r\nintelligence, immigration, or national security personnel as \r\nlong as notice is given to the court after the disclosure. \r\nRecipient can only use information in conduct of their duties \r\nsubject to disclosure limitations in current law. Intelligence \r\ninformation obtained from wiretaps can be shared with law \r\nenforcement, intelligence, immigration, or national security \r\npersonnel. Recipients can use the information only in the \r\nconduct of their duties and are subject to the limitations in \r\ncurrent law of unauthorized disclosure of wiretap information. \r\nAttorney General must establish procedures for the release of \r\nthis information in the case of a U.S. person. Intelligence \r\ninformation obtained in intelligence operations can be \r\ndisclosed to intelligence personnel in performance of their \r\nduties.\r\n Section 204: Clarification of Intelligence Exceptions from \r\nLimitations on Interception and Disclosure of Wire, Oral, and \r\nElectronic Communications--Explicitly carves out foreign \r\nintelligence surveillance operations from the protections of \r\nECPA.\r\n Section 205: Employment of Translators by the FBI--\r\nAuthorizes the FBI to expedite employment of translators.\r\n Section 206: Roving Surveillance Authority under FISA--\r\nExpands FISA court orders to allow ``roving'' surveillance in \r\nmanner similar to Title III wiretaps.\r\n Section 207: Duration of FISA Surveillance of Non-United \r\nStates Persons who are Agents of a Foreign Power--Currently, \r\nthe duration for a FISA surveillance may initially be ordered \r\nfor no longer than 90 days but later can be extended to one \r\nyear. This section changes the initial period for electronic \r\nsurveillance from 90 to 120 days and extensions from 90 days to \r\none year; and for searches from 45 to 90 days.\r\n Section 208: Designation of Judges--Increases number of \r\nFISA judges from 7 to 11 and requires that at least 3 judges \r\nreside within 20 miles of the District of Columbia.\r\n Section 209: Seizure of Voice Mail Pursuant to Warrants--\r\nProvides that voice mails can be accessed by the government \r\nwith a court order in the same way e-mails currently can be \r\naccessed and authorizes nationwide service with a single search \r\nwarrant for voice mails.\r\n Section 210: Scope of Subpoenas for Records of Electronic \r\nCommunications--Broadens the types of records that law \r\nenforcement can subpoena from electronic communications service \r\nproviders by requiring providers to disclose the means and \r\nsource of payment, including any bank account or credit card \r\nnumbers, pursuant to a subpoena.\r\n Section 211: Clarification of Scope--Broadens the scope of \r\nthe subscriber records disclosure statutes to treat cable \r\ncompanies that provide Internet service the same as other \r\nInternet Service Providers and telephone companies.\r\n Section 212: Emergency Disclosure of Electronic \r\nCommunications--Permits Internet Service Providers to disclose \r\nvoluntarily stored electronic communications of subscribers in \r\nthe event immediate danger or death or serious bodily injury to \r\na person requires such disclosure. Also otherwise allows law \r\nenforcement to compel disclosure to third parties using a court \r\norder or a search warrant.\r\n Section 213: Authority for Delaying Notice of Execution of \r\na Warrant--Broadens authority of law enforcement to delay \r\nnotification of search warrants in criminal investigation if \r\nprior notification would have an adverse result and if \r\nnotification is given a reasonable period after the search. \r\nBased on codification of Second Circuit decision.\r\n Section 214: Pen Register and Trap and Trace Authority \r\nunder FISA--Currently, when the Attorney General or a \r\ndesignated attorney for the government applies for a pen \r\nregister or trap and trace device under FISA, the application \r\nmust include a certification by the applicant that (1) the \r\ninformation obtained would be relevant to an on-going \r\nintelligence investigation, and (2) the information \r\ndemonstrates that the phone covered was used in communication \r\nwith someone involved in terrorism or intelligence activities \r\nthat may violate U.S. criminal law or with a foreign power or \r\nits agent whose communication is believed to concern terrorism \r\nor intelligence activities that could violate U.S. criminal \r\nlaws. The conference report deletes second prong, but limits \r\nthe use of these tools to protection against international \r\nterrorism or clandestine intelligence activities and provide \r\nthat the use of these tools may not be based solely on First \r\nAmendment activities.\r\n Section 215: Access to Records and Other Items under FISA--\r\n(1) requires a FISA court order to obtain business records; (2) \r\nlimits the use of this authority to investigations to protect \r\nagainst international terrorism or clandestine intelligence \r\nactivities; and (3) provides that investigations of U.S. \r\npersons may not be based solely on First Amendment activities.\r\n Section 216: Authorities Relating to the Use of Pen \r\nRegister and Trap and Trace Devices--Extends the pen\/trap \r\nprovisions so they apply not just to telephone communications \r\nbut also to Internet traffic, so long as they exclude \r\n``content.'' Excludes ISP's from liability, gives Federal \r\ncourts the authority to grant orders that are valid anywhere in \r\nthe United States instead of just their own jurisdictions, and \r\nprovides for a report to Congress on this ``Carnivore'' device.\r\n Section 217: Interception of Computer Trespasser \r\nCommunications--Allows persons ``acting under color of law'' to \r\nintercept communications if the owner of a computer authorizes \r\nit, and the person acting under color of law is acting pursuant \r\nto a lawful investigation. Section 815 also excludes service \r\nprovider subscribers from definition of trespasser, limits \r\ninterception authority to only those communications through the \r\ncomputer in question.\r\n Section 218: Foreign Intelligence Information--Permits FISA \r\nsurveillance and search requests if they are for a \r\n``significant'' intelligence gathering purpose (rather than \r\n``the'' purpose under current law).\r\n Section 219: Single Jurisdiction Search Warrants for \r\nTerrorism--Permits Federal judges to issue search warrants \r\nhaving nationwide effect for investigations involving \r\nterrorism.\r\n Section 220: Nationwide Service of Search Warrants for \r\nElectronic Evidence--Permits a single court having jurisdiction \r\nover the offense to issue a search warrant for e-mail that \r\nwould be valid in anywhere in the United States.\r\n Section 221: Trade Sanctions (IR Committee)--Adds Taliban \r\nto list of entities potentially subject to sanctions and \r\nretains congressional oversight in current law.\r\n Section 222: Assistance to Law Enforcement Agencies--\r\nProhibits technology mandates on entities to comply with this \r\nAct. Provides for cost reimbursement of entities assisting law \r\nenforcement with title III pen trap orders.\r\n Section 223: Civil Liability for Certain Unauthorized \r\nDisclosures--Increases civil liability for unauthorized \r\ndisclosure of pen trap, wiretap, stored communications or FISA \r\ninformation. Also requires administrative discipline of \r\nofficials who engage in such unauthorized disclosures.\r\n Section 224: Sunset--201, 202, 203(b), 204, 206, 207, 209, \r\n212, 214, 215, 217, 218, 220, will sunset in four years--at the \r\nend December 31, 2005. Conference agreement to narrow those \r\ninvestigations that survive sunset to particular investigations \r\nbased on offenses occurring prior to sunset.\r\n Section 225: Immunity for Compliance with FISA Wiretap--\r\nProvides immunity for civil liability from subscribers, \r\ntenants, etc. for entities that comply with FISA wiretap \r\norders--dropped Administration proposal allowing FBI to use \r\nwiretap information on U.S. citizens it obtained overseas in \r\nviolation of the Fourth Amendment.\r\n\r\n TITLE III: FINANCIAL INFRASTRUCTURE\r\n\r\n Other provisions to be supplied by Financial Services \r\nconference. Provisions below from House Judiciary Committee \r\nbill.\r\n Section 301: Laundering The Proceeds of Terrorism--Expands \r\nthe scope of predicate offenses for laundering the proceeds of \r\nterrorism to include ``providing material support or resources \r\nto terrorist organizations,'' as that crime is defined in 18 \r\nU.S.C. Sec. 2339B of the criminal code.\r\n Section 302: Extraterritorial Jurisdiction [International \r\nRelations Committee]--Applies the financial crimes prohibitions \r\nto conduct committed abroad in situations where the tools or \r\nproceeds of the offense pass through or are in the United \r\nStates.\r\n\r\n TITLE IV: PROTECTING THE BORDER\r\n\r\n SUBTITLE A--PROTECTING THE NORTHERN BORDER\r\n\r\n Section 401: Ensuring Adequate Personnel on the Northern \r\nBorder: Authorizes the waiver of any FTE cap on personnel \r\nassigned to the INS to address the national security on the \r\nNorthern Border.\r\n Section 402: Northern Border Personnel: Authorizes the \r\nappropriation of funds necessary to triple the number of Border \r\nPatrol, INS and Customs Service personnel in each State along \r\nthe northern border. The bill also authorizes $50 million each \r\nto the INS and Customs Services for purposes of making \r\nimprovements in technology for monitoring the northern border \r\nand acquiring additional equipment at the northern border.\r\n Section 403: Requiring Sharing by the Federal Bureau of \r\nInvestigation of Certain Criminal Record Extracts with Other \r\nFederal Agencies in Order to Enhance Border Security: Requires \r\nthe Justice Department and FBI to provide the State Department \r\nand INS information contained in its National Crime Information \r\nCenter files to permit INS and State to better determine \r\nwhether a visa applicant has a criminal history record.\r\n Section 404: Limited Authority to Pay Overtime: Strikes \r\ncertain prohibitions on the paying of overtime to INS \r\nemployees.\r\n Section 405: Report on the Integrated Automated Fingerprint \r\nIdentification System for Points of Entry and Overseas Consular \r\nPosts: Requires the Justice Department to report to Congress on \r\nthe feasibility of enhancing the FBI's Integrated Automated \r\nFingerprint Identification System and other identification \r\nsystems.\r\n\r\n SUBTITLE B: ENHANCED IMMIGRATION PROVISIONS\r\n\r\n Section 411: Definitions Relating to Terrorism: Broadens \r\nthe terrorism ground of inadmissibility to include (a) any \r\nrepresentative of a political or social group that publicly \r\nendorses terrorist activity in the United States, (b) a person \r\nwho uses his position of prominence within a country to endorse \r\nterrorist activity or persuade others to support terrorist \r\nactivity, (c) the spouses and children of persons engaged in \r\nterrorism, and (d) any other person the Secretary of State or \r\nAttorney General determines has been associated with a \r\nterrorist organization and who intends to engage in activities \r\nthat could endanger the welfare, safety, or security of the \r\nUnited States. This bill broadens the definition of ``terrorist \r\nactivity'' to include the use, not only of explosives and \r\nfirearms, but other dangerous devices as well. Further, it \r\nbroadens the definition of a terrorist ``engaging in a \r\nterrorist activity'' to include anyone who affords material \r\nsupport to an organization that the individual knows or should \r\nknow is a terrorist organization, regardless of whether or not \r\nthe purported purpose for the support is related to terrorism. \r\nIt also broadens the types of organizations that may be \r\ndesignated or redesignated as a foreign terrorist organization \r\nby the Secretary of State to comport with definitions of \r\nterrorism found elsewhere in the law.\r\n Section 412: Changes in Designation of Foreign Terrorist \r\nOrganizations: Expands the ability of the Attorney General to \r\nmandatorily detain those aliens that he certifies may pose a \r\nthreat to national security, pending the outcome of criminal or \r\nremoval proceedings.\r\n Section 413: Multilateral Cooperation Against Terrorists: \r\nEnhances the Government's ability to combat terrorism and crime \r\nworldwide by providing new exceptions to the laws regarding \r\ndisclosure of information from visa records. The bill grants \r\nthe Secretary of State discretion to provide such information \r\nto foreign officials on a case-by-case basis for the purpose of \r\nfighting international terrorism or other crimes. It also \r\nallows the Secretary to provide countries with which he \r\nnegotiates specific agreements to have more general access to \r\ninformation from the State Department's lookout databases where \r\nthe country will use such information only to deny visas to \r\npersons seeking to enter its territory.\r\n Section 414: Visa Integrity and Security: Includes a sense \r\nof the Congress that in light of the terrorist attacks, the \r\nAttorney General must expedite the implementation of the \r\nintegrated entry and exit data system authorized by Congress in \r\n1996.\r\n Section 415: Participation of Office of Homeland Security \r\non Entry Task Force: Includes the Office of Homeland Security \r\nin the development and implementation of the integrated entry \r\nand exit data system authorized by Congress in 1996.\r\n Section 416: Foreign Student Monitoring Program: Requires \r\nthe Attorney General to fully implement and expand foreign \r\nstudent monitoring program authorized by Congress in 1996.\r\n Section 417: Machine Readable Passports: Requires the \r\nSecretary of State to perform annual audits and report to \r\nCongress on the implementation of the machine-readable passport \r\nprogram.\r\n Section 418: Prevention of Consulate Shopping: Requires the \r\nSecretary of State to review how consular officers issue visas \r\nto determine if consular shopping is a problem.\r\n\r\n SUBTITLE C: PRESERVATION OF IMMIGRATION BENEFITS FOR VICTIMS OF \r\n TERRORISM\r\n\r\n Adds new subtitle (sections 421-428) to the \r\nAdministration's proposal to preserve the immigration benefits \r\nof the victims of the September 11th terrorist attacks and \r\ntheir family members. For some families, spouses and children \r\nmay lose their immigration status due to the death or serious \r\ninjury of a family member. These family members are facing \r\ndeportation because they are out of status: they no longer \r\nqualify for their current immigration status or are no longer \r\neligible to complete the application process because their \r\nloved one was killed or injured in the September 11 terrorist \r\nattack. Others are threatened with the loss of their \r\nimmigration status, through no fault of their own, due to the \r\ndisruption of communications andtransportation that has \r\nresulted directly from the terrorist attacks. Because of these \r\ndisruptions, people have been and will be unable to meet important \r\ndeadlines, which will mean the loss of eligibility for certain benefits \r\nand the inability to maintain lawful status, unless the law is changed. \r\nThe bill:\r\n Creates a new special immigrant status for \r\n people who were in the process of securing permanent \r\n residence through a family member who died, was \r\n disabled, or lost employment as a result of the \r\n terrorist activities of September 11, 2001;\r\n Provides a temporary extension of status to \r\n people who are present in the United States on a \r\n ``derivative status'' (the spouse or minor child) of a \r\n non-immigrant who was killed or injured on September \r\n 11, 2001;\r\n Provides remedies for people who will be \r\n adversely affected or will lose their right to apply \r\n for benefits because of their inability to meet certain \r\n deadlines through no fault of their own and as a result \r\n of the September 11, 2001 terrorist attack (visa \r\n waiver, diversity lottery, advance parole and voluntary \r\n departure);\r\n Provides immigration relief to the widows\/\r\n widowers and orphan children of citizens and legal \r\n permanent residents who were killed in the September 11 \r\n attacks by allowing applications for permanent resident \r\n status to be adjudicated;\r\n Prevents children from aging out of \r\n eligibility for immigration benefits were the delay the \r\n result of the September 11 attacks;\r\n Provides for temporary administrative relief \r\n to allow the family of people who were killed or \r\n seriously injured in the terrorist attacks who are not \r\n otherwise covered by this subtitle; and\r\n Prohibits any benefits from being provided \r\n to anyone culpable for the terrorist attacks on \r\n September 11 or any family member of such person.\r\n\r\n TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM\r\n\r\n Section 501: Attorney General's Authority to Pay Rewards--\r\nEnsures non-terrorism rewards are subject to budgetary caps.\r\n Section 502: Secretary of State Rewards (IR Committee)--\r\nAmends the Department of State's reward authority so that \r\nrewards may be offered for the identification or location of \r\nthe leaders of a terrorist organization, increases the maximum \r\namount of an award from $5 million to $10 million, and allows \r\nthe Secretary to further increase a reward to up to $25 million \r\nif the Secretary determines that offering the payment of such \r\nadditional amount is important to the national interest. Also \r\nprovides a sense of Congress that the Secretary should offer a \r\n$25 million award for Osama bin Laden and other leaders of the \r\nSeptember 11th attack. Broadens the AG's authority to offer \r\nrewards without caps for information related to terrorism.\r\n Section 503: DNA Identification of Terrorists--Requires \r\npersons convicted of terrorism offenses also to submit to DNA \r\nsamples.\r\n Section 504: Coordination with Law Enforcement--Allows \r\nFederal law enforcement conducting electronic surveillance or \r\nphysical searches to consult with other Federal law enforcement \r\nofficers to protect against hostile acts, terrorism, or \r\nintelligence activities.\r\n Section 505: Miscellaneous National-Security Authorities--\r\nIn counterintelligence investigations, the Director of the FBI \r\nor his designee, not lower than the Deputy Assistant Director, \r\nmay request telephone, financial, or credit records of an \r\nindividual if he certifies that the information sought is (1) \r\nrelevant to an authorized foreign counterintelligence \r\ninvestigation, and (2) that there are ``specific and \r\narticulable'' facts finding that the person\/entity from whom \r\nthe information is sought is a foreign power or its agent.\r\n Section 506: Extension of Secret Service Jurisdiction--\r\nAllows Secret Service to coordinate with Justice Department to \r\ninvestigate offenses against U.S. government computers.\r\n Section 507: Disclosure of Educational Records (Education \r\nand Workforce)--Allows the release of student education records \r\nif it is determined by the Attorney General or Secretary of \r\nEducation (or their designee) that doing so could reasonably be \r\nexpected to assist in investigating or preventing a federal \r\nterrorism offense or domestic or international terrorism.\r\n Section 508: Disclosure of NC Information--Same as 507, but \r\ncovers surveys conducted by the Education Department.\r\n\r\nTITLE VI: PROVIDING FOR VICTIMS AND PUBLIC SAFETY OFFICERS SUBTITLE A: \r\n AID TO FAMILIES OF PUBLIC SAFETY OFFICERS\r\n\r\n Section 611: Expedited Payment for Public Safety Officers \r\nInvolved in the Prevention, Investigation, Rescue, or Recovery \r\nEfforts Related to a Terrorist Attack--Expedites payment of \r\nbenefits to victims, their families, and public safety \r\nofficers.\r\n Section 612: Technical Correction with Respect to Expedited \r\nPayments for Heroic Public Safety Officers--Makes technical \r\ncorrection to Nadler bill, which passed into law in mid-\r\nSeptember 2001.\r\n Section 613: Public Safety Officer Benefit Program Payment \r\nIncrease.--Increases public safety officer benefits from \r\n$100,000 to $250,000.\r\n Section 614: Office of Justice Programs--Adds to the list \r\nof programs within OJP.\r\n\r\n SUBTITLE B: AMENDMENTS TO THE VICTIMS OF CRIME ACT OF 1984\r\n\r\n This subtitle makes changes to the administration of--and \r\nauthorizes additional funding for--the crime victims fund.\r\n\r\n TITLE VII: INCREASED INFORMATION SHARING\r\n\r\n This Subtitle expands regional information sharing to \r\nfacilitate Federal-state-local law enforcement responses to \r\nterrorism.\r\n\r\n TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM\r\n\r\n Section 801: Terrorist Attacks and Other Acts of Violence \r\nAgainst Mass Transportation Systems--Establishes a new Federal \r\noffense for attacking a mass transportation system.\r\n Section 802: Definition of Domestic Terrorism--Creates a \r\ndefinition for ``domestic terrorism'' for the limited purpose \r\nof providing investigative authorities (i.e., court orders, \r\nwarrants, etc.) for acts of terrorism within the territorial \r\njurisdiction of the United States. Such offenses are those that \r\nare ``(1) dangerous to human life and violate the criminal laws \r\nof the United States or any state; and (2) appear to be \r\nintended (or have the effect)--to intimidate a civilian \r\npopulation; influence government policy by intimidation or \r\ncoercion; or affect government conduct by mass destruction, \r\nassassination, or kidnaping (or a threat of).''\r\n Section 803: Prohibition Against Harboring Terrorists--\r\nMakes it an offense when someone harbors or conceals another \r\nthey know or should have known had engaged in or was about to \r\nengage in federal terrorism offenses.\r\n Section 804: Jurisdiction over Crimes Committed at U.S. \r\nFacilities Abroad--Extends the special and maritime criminal \r\njurisdiction of the United States to offenses committed abroad \r\nby or against U.S. nationals.\r\n Section 805: Material Support for Terrorism--Permits \r\nprosecution under current crime of material support for \r\nterrorism to occur in ``any Federal judicial district in which \r\nthe underlying offense was committed, or in any other Federal \r\njudicial district as provided by law,'' and includes the \r\nprovision of ``monetary instruments'' as ``material support.''\r\n Section 806: Assets of Terrorist Organizations--Extends \r\nforfeiture and confiscation authority to ``all assets, foreign \r\nor domestic'' that are owned or controlled by ``any person, \r\nentity or organization engaged in planning or perpetuating any \r\nact of domestic terrorism or international terrorism against \r\nthe United States, citizens or residents . . . or their \r\nproperty.''\r\n Section 807: Technical Clarification Relating to Provision \r\nof Material Support to Terrorism--Makes clear that whoever \r\nprovides material support or resources to terrorists or foreign \r\nterrorist organizations may be subject to criminal liability \r\nunder Sec. 2339A or Sec. 2339B. Moreover, proposed section 407 \r\nof the Administration's legislation seemed to gut the \r\ncongressional approval requirement and confer upon the \r\nPresident the independent power to impose agricultural and \r\nmedical sanctions on terrorists ``wherever they are located.''\r\n Section 808: Definition of Federal Crime of Terrorism--Adds \r\nnew highly egregious offenses to existing definition of \r\n``Federal crime of terrorism,'' thereby ensuring that \r\n``coercing government'' is an element of the offense along with \r\nother predicates. Also, added predicates are narrowed to those \r\nbeing the most egregious.\r\n Section 809: No Statute of Limitation for Prosecuting \r\nTerrorism Offenses--Provides that terrorism offenses may be \r\nprosecuted without time limitations, however, more focused list \r\nof offenses will continue to carry an 8-year statute of \r\nlimitations except where they resulted in, or created a risk \r\nof, death or serious bodily injury.\r\n Section 810: Alternative Maximum Penalties for Terrorism \r\nCrimes--Provides alternative maximum prison terms for terrorism \r\ncrimes, including imprisonment for any term of years or for \r\nlife.\r\n Section 811: Penalties for Terrorist Conspiracies--Adds a \r\nnew section to the terrorism chapter of the criminal code to \r\nprovide that the maximum penalties for conspiracies to commit \r\nterrorism are equal to the maximum penalties authorized for the \r\nobjects of such conspiracies (similar approach is found in the \r\ncriminal code with respect to drug crimes).\r\n Section 812: Post-Release Supervision of Terrorists--\r\nAuthorizes longer supervision periods, including lifetime \r\nsupervision, for persons convicted of terrorism crimes (a \r\nsimilar approach is found in the drug crimes statute, which \r\nimposes a term of supervised release of at least 10 years, \r\ninstead of 5 years, in cases where there is a prior \r\nconviction).\r\n Section 813: Inclusion of Acts of Terrorism Crimes as \r\nRacketeering Activity--Provides that any terrorism-related \r\ncrimes can be RICO predicates.\r\n Section 814: Deterrence and Prevention of Cyberterrorism--\r\nAlters damage and civil liability triggers for computer hacking \r\noffenses. Also eliminates mandatory minimums in current law for \r\ncomputer hacking offenses.\r\n Section 815: Additional Defense to Civil Actions Relating \r\nto Preserving Records in Response to Government Requests--\r\nEliminates any ISP liability to customers for turning customer \r\nrecords over to law enforcement pursuant to any statutory \r\nauthorization.\r\n Section 816: Development and Support of Cybersecurity \r\nForensic Capabilities--Requires the Attorney General to \r\nestablish regional computer forensic laboratories.\r\n Section 817: Biological Weapons--Makes it an offense for a \r\nperson to possess a biological weapon that is not reasonably \r\njustified, under the circumstances, by a prophylactic, \r\nprotective, bona fide research, or other peaceful purpose.\r\n\r\n TITLE IX: IMPROVED INTELLIGENCE\r\n\r\n Section 901: Responsibilities of Director of Central \r\nIntelligence Regarding Foreign Intelligence Collected under \r\nFISA--Authorizes the Director of the CIA to establish \r\nrequirements and priorities for collecting foreign \r\nintelligence, and to provide assistance to the Attorney General \r\nin ensuring that information derived from electronic \r\nsurveillance or physical searches is properly disseminated. The \r\nDCI cannot direct, manage, or undertake electronic surveillance \r\nor physical search operations unless otherwise authorized by \r\nstatute or executive order.\r\n Section 902: Inclusion of International Terrorist \r\nActivities within Scope of Foreign Intelligence under the \r\nNational Security Act--Includes international terrorist \r\nactivities within the scope of foreign intelligence under the \r\nNational Security Act.\r\n Section 903: Sense of Congress--Sense of Congress on the \r\nestablishment of intelligence relationships to acquire \r\ninformation on terrorists.\r\n Section 904: Temporary Authority to Defer Submittal to \r\nCongress of Reports on Intelligence and Intelligence-Related \r\nMatters--Grants DCI temporary authority to delay submittal of \r\nreports to Congress on intelligence matters.\r\n Section 905: Disclosure to Director of Central Intelligence \r\nof Foreign Intelligence-Related Information with Respect to \r\nCriminal Investigations--Requires the Attorney General to \r\ndisclose to the CIA Director foreign intelligence acquired by \r\nthe Justice Department in the course of a criminal \r\ninvestigation, except when disclosing such information would \r\njeopardize an ongoing investigation.\r\n Section 906: Foreign Terrorist Asset Tracking Center--\r\nRequires the DCI, the AG, and the Secretary of the Treasury to \r\nreport to Congress by February 1, 2002, on the desirability of \r\na Foreign Asset Tracking Center to track terrorist assets.\r\n Section 907: National Virtual Translation Center--Requires \r\nthe DCI and the FBI to report to Congress on the establishment \r\nof a National Virtual Translation Center.\r\n Section 908: Training of Government Officials Regarding \r\nIdentification and Use of Foreign Intelligence--Requires DCI \r\nand AG to establish program to train officials to handle \r\nforeign intelligence information.\r\n\r\n TITLE X: MISCELLANEOUS\r\n\r\n Section 1001: Review of the Department of Justice--Requires \r\nDOJ Inspector General to designate one official to receive \r\ncomplaints of civil liberties and civil rights abuses and to \r\nreport such abuses to Congress semi-annually.\r\n\r\n Appendix B, Summary of 16 Expiring Provisions\r\n\r\n Below is a summary of each of the sixteen sections set to \r\nexpire this year pursuant to section 224 (the sunset does not \r\napply to on-going investigations), an explanation of how each \r\nhas been used, and any concerns related to such authorities:\r\n\r\nSec. 201--Authority to intercept wire, oral, and electronic \r\n communications relating to terrorism\r\n\r\n This section adds terrorism offenses to the list of \r\npredicates for title III wiretaps. Title III is used for \r\ncriminal investigations.\r\n\r\nSec. 202--Authority to intercept wire, oral, and electronic \r\n communications relating to computer fraud and abuse offenses\r\n\r\n This section adds computer fraud and abuse offenses as \r\npredicates for title III wiretaps.\r\n\r\nSec. 203(b) and (d)--Authority to share electronic, wire, and oral \r\n interception information; Authority to share foreign \r\n intelligence information\r\n\r\n Section 203(b) allows the government to share information \r\nfrom criminal wiretaps and electronic surveillance with federal \r\nlaw enforcement, immigration, and national security personnel \r\nas long as notice is given to the court after the disclosure. \r\nThe recipient can use information only in the conduct of their \r\nduties subject to disclosure limitations in current law.\r\n Section 203(d) allows the FBI to share intelligence \r\ninformation with other federal law enforcement, immigration, \r\nand national security personnel. The Attorney General must \r\nestablish procedures for the release of this information in the \r\ncase of a U.S. person.\r\n\r\nSec. 204--Clarification of intelligence exceptions from limitations on \r\n interception and disclosure of wire, oral, and electronic \r\n communications\r\n\r\n This section carves out foreign intelligence surveillance \r\noperations from the Electronic Communications Privacy Act, \r\nwhich imposes limits on the placement of wiretaps.\r\n\r\nSec. 206--Roving surveillance authority under the Foreign Intelligence \r\n Surveillance Act\r\n\r\n This section allows the FBI to use roving wiretaps under \r\nFISA. This means that the FBI can obtain a single court order \r\nto tap any phone they believe a foreign agent would use, \r\ninstead of getting separate court orders for each phone. The \r\ngovernment need not name the target.\r\n\r\nSec. 207--Duration of FISA surveillance of non-United States persons \r\n who are agents of a foreign power\r\n\r\n This section lets the FBI obtain FISA search and \r\nsurveillance orders for longer periods of time than they could \r\nhave prior to the PATRIOT Act:\r\n 1. Wiretap orders relating to an agent of foreign power \r\nincreased from 90 days to 120 days, and subsequent extensions \r\nwere increased from 90 days to a year;\r\n 2. Physical searches of non-U.S. persons who are agents of \r\na foreign power increased from 45 days to 120 days, and \r\nsubsequent extensions were left at one year intervals;\r\n 3. All other physical searches--including those against \r\nU.S. persons--were extended from 45 to 90 days, and subsequent \r\nextensions were left at one year intervals.\r\n These can be compared to wiretaps in the criminal context \r\nthat are authorized and extended for only 30 days at a \r\ntime.\\129\\\r\n---------------------------------------------------------------------------\r\n \\129\\ USA Patriot Act: Sunsets Reports, April 2005, Department of \r\nJustice.\r\n---------------------------------------------------------------------------\r\n\r\nSec. 209--Seizure of voice mail messages pursuant to warrants\r\n\r\n This section provides that the FBI can access voice mails \r\nthe same way it accesses e-mails and authorizes nationwide \r\nservice with a single search warrant.\r\n\r\nSec. 212--Emergency Disclosures of Communications held by Phone \r\n Companies and Internet Service Providers\r\n\r\n This section permits telephone companies and Internet \r\nService Providers (ISPs) to disclose to the government, without \r\npenalty, customer communications and records if they think \r\nthere is a danger of death or serious injury. This section \r\nprecludes liability regardless of whether the company \r\ninnocently stumbles on the information itself and approaches \r\nthe government, or whether law enforcement initiates the \r\ndisclosure itself. Because this section directly amended Title \r\n18 of the U.S. Code, it can be used in any run-of-the-mill \r\ncriminal investigation and has no ties to terrorism cases. In \r\nfact, all of the examples cited by the Justice Department are \r\nnon-terror cases, including a bomb threat against a school, \r\nnumerous kidnaping cases, and computer hacking threats.\\130\\\r\n---------------------------------------------------------------------------\r\n \\130\\ See Reports From the Field: The USA Patriot Act at Work, U.S. \r\nDepartment of Justice, July 2004.\r\n---------------------------------------------------------------------------\r\n\r\nSec. 214--Pen register and trap and trace authority under FISA\r\n\r\n This section made it easier for the FBI to get a pen \r\nregister or trap-and-trace under FISA.\\131\\ The FBI needs to \r\nprove the order is needed to obtain foreign intelligence \r\ninformation not concerning a U.S. person or to protect against \r\ninternational terrorism or clandestine intelligence activities. \r\nPrior to the PATRIOT Act, the FBI needed to establish that the \r\ntelephone line in question had been used or was about to be \r\nused in connection with terrorism or a crime; this requirement \r\nwas deleted. Before section 214, the government had to prove \r\nthat the target was an agent of a foreign power; now, they need \r\nonly prove that the information is related to a terror or \r\nintelligence investigation. This extremely broad qualification \r\nof a FISA pen register\/trap and trace order has led many groups \r\nto oppose it.\\132\\\r\n---------------------------------------------------------------------------\r\n \\131\\ A pen register is used to record the phone numbers that are \r\ndialed from a target phone. A trap-and-trace is used to record the \r\nphone numbers of the incoming calls to a target phone.\r\n \\132\\ See, for example, Electronic Privacy Information Center ``The \r\nUSA PATRIOT Act,'' at www.epic.org\/privacy\/terrorism\/usapatriot\/.\r\n---------------------------------------------------------------------------\r\n\r\nSec. 215--Access to records and other items under the Foreign \r\n Intelligence Surveillance Act\r\n\r\n This section expanded the FBI's ability to obtain business \r\nrecords under FISA. Before the Act, the government could seek \r\nrecords only from hotels\/motels, storage facilities and car \r\nrental companies; now, it can seek ``any tangible thing'' from \r\nany business. To obtain such records, the FBI Director (or his \r\ndesignee) must seek an order from the Foreign Intelligence \r\nSurveillance Court and specify that the records are sought for \r\nforeign intelligence information not concerning a U.S. person \r\nor are sought to protect against international terrorism or \r\nintelligence gathering. Upon receipt of such a request, the \r\ncourt must grant the order. Recipients are prohibited from \r\ndisclosing to anyone but their attorneys that they have \r\nreceived a section 215 request.\r\n\r\nSec. 217--Interception of computer trespasser communications\r\n\r\n This section allows persons ``acting under color of law'' \r\nto intercept computer communications if a computer owner \r\nauthorizes it, and if the person acting under color of law is \r\nacting pursuant to a lawful investigation.\r\n\r\nSec. 218--Foreign intelligence information\r\n\r\n This section says the FBI needs to aver that a \r\n``significant'' purpose of a FISA order request is to gather \r\nforeign intelligence; before the Act, the FBI needed to show \r\nthat obtaining foreign intelligence was the ``primary purpose'' \r\nof the order.\r\n The effect of letting the status quo continue is that \r\nevidence obtained from a FISA warrant under FISA's statutory \r\n``probable cause'' standard can be given to non-terror criminal \r\nprosecutors who are governed by the higher standard of 4th \r\nAmendment probable cause. In fact, the lower standard FISA \r\nwarrant can be sought for criminal prosecution purposes, as \r\nlong as terrorism or national intelligence is some small part \r\nof the reason. The long-standing policy of not letting criminal \r\nprosecutors direct intelligence investigations has been \r\nvitiated.\r\n\r\nSec. 220--Nationwide service of search warrants for electronic evidence\r\n\r\n This section allows a single court to issue a search \r\nwarrant for electronic evidence that is valid nationally. \r\nAccording to the Department's May 13, 2003 letter, it has used \r\nthis authority to track a fugitive and to track a hacker who \r\nstole trade secrets from a company and then extorted money from \r\nit.\\133\\\r\n---------------------------------------------------------------------------\r\n \\133\\ Id. at 24.\r\n---------------------------------------------------------------------------\r\n\r\nSec. 223--Civil liability for certain unauthorized disclosures\r\n\r\n This section was included by Rep. Barney Frank to increase \r\ncivil liability for unauthorized disclosure of pen\/trap, \r\nwiretap, e-mail, or FISA information. In its May 13, 2003 \r\nletter to the Committee, the Department stated there had been \r\nno administrative disciplinary proceedings or civil actions \r\nunder section 223.\r\n\r\nSec. 225--Immunity for compliance with FISA wiretap\r\n\r\n This section immunizes private parties who comply with FISA \r\ncourt orders or ``requests for emergency assistance'' otherwise \r\nauthorized under FISA. Immunity already existed for criminal \r\ncases, and this section intended to provide the same for people \r\nwho cooperated with officials in terror or intelligence cases.\r\n\r\n``Lone Wolves'' as Agents of a Foreign Power\r\n\r\n Section 6001 of the Intelligence Reform and Terrorism \r\nPrevention Act of 2004 created the so-called ``lone wolf'' \r\nprovision of FISA redefining the ``agent of a foreign power'' \r\nto include those who ``engage in international terrorism or \r\nactivities in preparation therefore.'' In other words, agents \r\nof a foreign power no longer need to have any connection to a \r\nforeign power. This is limited to non-U.S. persons, although a \r\nleaked ``PATRIOT II'' bill authored by the Justice Department \r\nwould have expanded the lone wolf provision to cover U.S. \r\npersons as well.\r\n The purpose of FISA always has been espionage and terrorism \r\nsurveillance against foreign governments, foreign groups, or \r\nindividuals associated with such governments or groups. Section \r\n6001 expanded FISA to include any single person who engages in \r\na violent act that (1) transcends national boundaries and (2) \r\nis intended to coerce the government or a civilian population.\r\n When this provision passed committee in the markup of H.R. \r\n10, it had a rebuttable presumption that a FISA judge could \r\ninvoke when the target had no ties to foreign governments \r\nwhatsoever. That provision was removed before the bill went to \r\nthe floor.\r\n\r\n John Conyers, Jr.\r\n Robert C. Scott.\r\n Maxine Waters.\r\n William D. Delahunt.\r\n Anthony D. Weiner.\r\n Linda T. Sanchez.\r\n Debbie Wasserman Schultz.\r\n Jerrold Nadler.\r\n Melvin L. Watt.\r\n Sheila Jackson Lee.\r\n Martin T. Meehan.\r\n Robert Wexler.\r\n Chris Van Hollen.<\/pre>\n
109th Congress Rept. 109-174 HOUSE OF REPRESENTATIVES 1st Session Part 1 ====================================================================== USA PATRIOT AND TERRORISM PREVENTION REAUTHORIZATION ACT OF 2005 _______ July 18, 2005.–Ordered to be printed _______ Mr. Sensenbrenner, from the Committee...<\/p>\n","protected":false},"author":1,"featured_media":4181,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[72,57],"tags":[],"class_list":["post-6256","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-hearings-u-s-house-of-representatives","category-legislation"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p89tuq-1CU","jetpack_featured_media_url":"https:\/\/multiracial.com\/wp-content\/uploads\/2016\/12\/Government-Congress.png","_links":{"self":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6256","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/comments?post=6256"}],"version-history":[{"count":1,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6256\/revisions"}],"predecessor-version":[{"id":6257,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/posts\/6256\/revisions\/6257"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media\/4181"}],"wp:attachment":[{"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/media?parent=6256"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/categories?post=6256"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/multiracial.com\/index.php\/wp-json\/wp\/v2\/tags?post=6256"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}